**x  c 

'  >\c 


THE  GOVERNMENT 
OF  MODERN  STATES 


j 


AN  INTRODUCTION  TO  THE  STUDY  OF 

•THE  GOVERNMENT 
OF  MODERN  STATES 


y  BY 

W.  F.  WILLOUGHBY 

Director  of  The  Institute  for  Government  Research, 

Late  McCormick  Professor  of  Jurisprudence 

and  Politics,  Princeton  University 


NEW  YORK 

THE  CENTURY  CO. 

1919 


Copyright,  1919,  by 
THE  CENTURY  Co. 


Published,  January,  1919 


PREFACE 


The  present  work  seeks  to  do  two  things :  to  set  forth  the 
problem  of  government  as  a  problem;  and  to  show  how  the 
leading  States  of  the  world  have  in  practice  met  it.  It  is 
easy  for  students  to  learn  a  mass  of  facts  regarding  the 
structural  character  of  different  governments.  It  is  ex- 
ceedingly difficult,  however,  for  them  to  interpret  these  facts, 
to  see  the  fundamental  principles  lying  back  of  them,  and 
of  which  they  are  but  the  expression;  in  a  word,  to  grasp 
the  real  significance  of  the  differences  in  governmental  or- 
ganization and  procedure  and  the  consequences  resulting 
therefrom.  This  difficulty  arises  from,  or  at  least  is  aggra- 
vated by,  the  fact  that  government,  as  generally  taught,  is 
so  preeminently  a  matter  of  description.  Students  are 
usually  at  once  introduced  to  the  study  of  particular  govern- 
ments without  first  having  been  given  that  background  of 
knowledge  of  fundamental  political  principles  which  alone 
will  enable  them  intelligently  to  interpret  the  facts  learned. 

If  one  surveys  the  field  of  political  action,  national  and 
international,  it  is  at  once  apparent  that  the  great  issues  have 
been,  and  are,  not  over  the  details  of  governmental  organ- 
ization and  modes  of  action,  but  over  political  principles  — 
whether  one  type  of  government  or  another  shall  prevail; 
whether  final  authority  shall  be  deemed  to  reside  in  an  auto- 
cratic ruler  or  in  the  mass  of  the  people ;  on  what  basis  shall 
the  distribution  of  political  powers  take  place  as  between 
the  central,  provincial  and  local  governments,  or  between 
*he  several  branches  of  government,  the  legislative,  the  exec- 


vi  PREFACE 

litive  and  the  judicial ;  what  shall  be  the  proper  function  of 
the  electorate,  shall  it  adhere  to  the  principle  of  representa- 
tive government,  or  shall  it  seek  by  various  devices  itself 
directly  to  legislate  and  determine  specific  lines  of  action; 
what  shall  be  the  relations  between  mother  countries  and 
their  dependencies;  and  scores  of  other  questions  of  like 
fundamental  import.  The  revolutionists  in  Russia,  China, 
Turkey,  Persia  and  elsewhere  have  not  been  struggling  for 
a  particular  form  of  government,  structurally  considered, 
but  for  one  resting  upon  essentially  different  principles  from 
the  ones  under  which  they  were  living.  The  social  demo- 
cratic and  liberal  parties  in  Germany  and  Japan  today  are 
demanding,  not  a  mere  change  in  the  mechanics  of  their 
governments  but  that  the  basic  principle  upon  which  such 
governments  rest  shall  be  changed,  that  sovereignty  shall 
be  held  to  reside  in  the  people  instead  of  an  autocratic  ruler 
claiming  to  hold  his  throne  by  divine  right  and  to  be  re- 
sponsible to  God  alone  for  the  manner  in  which  he  exer- 
cises his  powers.  The  present  great  war,  as  our  President 
has  so  ably  pointed  out,  is  essentially  one  for  the  establish- 
ment of  basic  political  principles:  that  the  State  exists  for 
the  welfare  of  the  individual,  not  the  individual  for  the 
State;  that  the  end  of  all  government  is  the  promotion  of 
the  welfare  of  the  individual;  that  in  State,  as  well  as  indi- 
vidual, action  the  accepted  canons  of  morality  shall  pre- 
vail; that  peoples  shall  have  a  controlling  voice  in  respect 
to  the  character  of  government  under  which  they  have  to 
live  and  the  policies  that  shall  be  pursued  by  such  govern- 
ment. 

No  amount  of  study  of  the  mere  details  of  governmental 
structure  and  operation  will  enable  students  to  think  intelli- 
gently regarding  these  issues  or  to  pass  judgment  upon  the 
more  or  less  radical  measures  of  reform  that  are  being 


PREFACE  vii 

proposed  in  respect  to  their  own  as  well  as  foreign  govern- 
ments. If  they  are  to  be  able  to  do  this  they  must,  in  some 
way,  have  their  attention  concentrated  on  these  issues  and 
principles  as  issues  and  principles.  In  existing  text  books 
on  government  political  principles  have  not  been  ignored, 
but  they  have  not  been  disentangled  from  descriptive  matter 
and  so  presented  that  their  full  purport  is  apparent. 

The  distinguishing  feature  of  the  present  work  is  the  at- 
tempt to  meet  this  lack.  In  it,  the  problem  of  government 
is  studied  as  a  problem.  The  great  end  sought  is  to  get 
clearly  before  the  student  the  nature  and  terms  of  the  prob- 
lem that  is  presented  to  all  peoples  in  seeking  to  organize 
themselves  as  States  and  devise  machineries  of  government 
through  which  they  can  effectively  act  as  such.  The  posi- 
tion is  taken  that,  not  until  the  terms  of  a  problem  are 
stated,  can  one  intelligently  consider  the  action  that  has 
been,  or  may  be,  taken  in  meeting  it.  With  such  terms 
clearly  understood,  little  difficulty  ought  to  be  experienced 
by  any  student  in  appreciating  the  nature  of  any  particular 
government  or  the  features  in  respect  to  which  it  differs 
importantly  from  other  governments. 

The  present  work  is  thus  essentially  one  of  analysis.  It 
seeks  to  resolve  the  problem  of  government  as  it  confronts 
all  peoples  into  its  constituent  elements ;  to  show  the  alterna- 
tive lines  of  action  that  are  open  in  each  case;  and  the  rea- 
sons why  one  or  the  other  has  been  chosen  by  individual 
States.  In  doing  so,  the  principle  of  presentation  adopted 
has  been  that  of  proceeding  from  the  general  to  the  partic- 
ular. The  author  has  sought  to  put  himself  in  the  position 
of  a  constituent  assembly,  or  constitutional  convention,  be- 
ginning its  work  with  a  clean  slate  and  free  to  bring  into 
existence  that  form  of  government  which  it  believes  to  be 
best  adapted  to  the  needs  of  the  population  on  whose  behalf 


arm  PREFACE 

it  is  acting.  Such  a  body  has  to  make  its  decisions  in 
a  certain  order.  It  must  determine  whether  the  govern- 
ment to  be  created  shall  be  one  where  sovereignty  is  deemed 
to  reside  in  an  autocratic  ruler  or  in  the  people ;  whether  the 
sum  total  of  governmental  powers  shall  be  vested  in  one 
or  a  number  of  governmental  organizations;  whether  there 
shall  be  a  union  or  separation  of  powers;  and  like  ques- 
tions, before  it  can  proceed  to  a  consideration  of  the  details 
of  governmental  organization  and  procedure.  This  is  the 
order  of  treatment  followed  in  the  present  work.  In  put- 
ting this  plan  into  execution  the  effort  has  been  made  to 
maintain  a  due  proportion  between  the  importance  of  the 
points  considered  and  the  space  given  to  them,  while  the 
fundamental  problems  of  government  are  considered  at 
some  length.  As  the  inquiry  is  pushed  more  and  more  into 
details  the  treatment  becomes  less  exhaustive  until,  finally, 
little  more  than  an  enumeration  of  the  points  that  must  be 
considered  in  framing  a  system  of  government  is  attempted. 

W.  F.  WlLLOUGHBY. 

Washington,  D.  C, 
November  i,  1918. 


CONTENTS 


PAGE 

PREFACE        ...     f      •_      •_      ..     ..,     JL     JL      •>.     .».     _•.     A     A     .»_     .».     .•_        V 

PART  I:    SOME  FUNDAMENTAL  CONSIDERATIONS 


CHAPTER  I.    INTRODUCTION  .     .     .     .     .     .    ...    .     .     .    ...      3 

The  Study  of  Government  one  of  Political  Principles  as  well  as  of  Me* 

chanical  Structure. 

The  Present   World   War  one  of  Political  Principles. 
Distinction  between  a  State  and  Its  Government. 

CHAPTER  II. .  THE  NATURE  OF  THE  STATE     .     .     .    ..     .     .      7 

The  State  as  an  Abstraction. 

Essential  Characteristics  of  the  State. 

Desire   on  the   Part  of  a  Community  that  It  Shall  Constitute  a  Body 

Politic. 

Necessity  that  this  Desire  Shall  find  Actual  Expression. 
The  State  an  Entity,  Indivisible  and  Immutable. 
Force  or  Compulsion  as  an  Attribute  of  the  State. 
Law  as  an  Attribute  of  the  State. 
The  State  as  the  Possessor  of  Supreme  and  Unlimited  Authority:     The 

Attribute  of   Sovereignty. 
Significance  of  the  Creation  of  a  State:     Surrender  of  Individual  Wills 

to  a  Collective  Will. 

The  Paradox  of  Freedom  through  Restraint:  of  Liberty  through  Law. 
Difficulty   at  Times  in   Determining  whether  a  Given   Community   is  a 

State. 

So-called   Non-sovereign   States,  Quasi-sovereign   States,  States  with  Im- 
paired   Sovereignty,    Neutralized    States,    etc. 
Distinction  between  a  Federation  and  a  Confederation:     The  Former  a 

State,  the  Latter  Not. 

The  American  Civil  War  a  Contest  over  the  Nature  of  the  State. 
The  State  as  the  Possessor  of  Personality. 

Identical  Character  of  the  State  in  all  Cases. 
Present  Importance  of  the  Question  of  the  Nature  of  the  State. 
Comparison  of  the  Anglo-Saxon  and  Teutonic  Theories  of  the  State. 

PART  II.    TYPES  OF  GOVERNMENTS 

CHAPTER  III.  THE  THREE  TYPES  OF  GOVERNMENT  ACCORD- 
ING TO  THE  LOCATION  OF  SOVEREIGNTY:  AUTOCRATIC, 
OLIGARCHIC  AND  POPULAR 34 

Unity  of  the  Problem  of  Government. 

The  Location  of  Sovereignty. 

Three  Types  of  Government  according  to  the  Location  of  Sovereignty: 

Autocracy,  Oligarchy  and  Popular  Governments. 
The  Autocratic   Type  of  Government. 
The  Doctrine  of  the  Divine  Right  of  Kings. 

ix 


x  CONTENTS 

PAGE 

Two  Classes  of  Autocracies:     Absolute  and  Limited. 

The  Oligarchic  Type  of  Government. 

The   Popular    Type   of   Government. 

Historical  Development  of  the  Doctrine  of  Popular  Sovereignty. 

Popular  Government  a  Question  of  Fact:  Need  not  be  Expressly  De- 
clared in  the  Constitution. 

Popular  Government   Possible  in  a  Monarchy. 

Comparison  of  the  Two  Types  of  Government:  Autocracy  and  Popular 
Government. 

Tendency   for   the   Doctrine   of  Popular   Sovereignty   to   Prevail. 

The  Struggle  for  Popular  Government  in  Germany  and  Japan. 

CHAPTER  IV.  THE  Two  TYPES  OF  GOVERNMENT  ACCORDING 
TO  THE  MANNER  OF  EXERCISE  OF  SOVEREIGNTY:  ABSO- 
LUTE AND  CONSTITUTIONAL 72 

Distinction    between    Governments    of    Authority    and    Governments    of 

Law. 

Absolute  and  Limited  Autocracies. 
Absolute  and  Limited   Popular  Governments. 
Constitutional  Government. 

CHAPTER  V.    THE   Two   TYPES   OF   POPULAR   GOVERNMENT: 

DEMOCRACY  AND  REPRESENTATIVE  GOVERNMENT  ...     80 

Definition  of  Democracy. 

Inherent  Limitations  of  Democracies. 

Representative  Government. 

Mixed  or  Democratic-Representative  Government. 

The   Government   of   England  the   Purest   Example   of   a   Representative 

Government. 
The  Government  of  the  United  States  a  Representative   Government  in 

Principle. 
The    Contest   between   the   Principles   of   Democracy   and   Representative 

Government  in  the  United  States. 


PART  III:    THE  ESTABLISHMENT  OF 
GOVERNMENTS 

CHAPTER  VI.    THE  FORMULATION  OF  CONSTITUTIONS  ...     93 

Governments  Established  through  the  Formulation  of  Constitutions. 

Written  and  Unwritten  Constitutions. 

Methods  of   Establishing  Constitutions. 

Establishment  of  Constitutions  by  Grant. 

Establishment  of  Constitutions  by  Deliberate  Creation. 

Establishment  of  Constitutions  by  a  Process  of  Gradual  Evolution. 

Establishment  of  Constitutions  by   Revolution. 

Dual  Character  of  Revolutions:  A  Revolt  against  Existing  Govern- 
mental Conditions  and  a  Movement  to  Establish  a  New  Type  of 
Government. 

Difficulties  in  Establishing  a  Government  by  Revolution. 

CHAPTER  VII.    THE  MODIFICATION  OF  CONSTITUTIONS     .     .   107 

The  Question  of  Policy  in  respect  to  the  Ease  with  which  Constitutions 

may  be  Modified. 

Stability  a  Prime  Requisite  of  any  Constitutional  System. 
Flexibility  also  a  Requisite  of  a  Constitutional  System. 


CONTENTS  xi 

PAGE 

Two  Methods  of  Securing  both  Stability  and  Flexibility:  Proper  Draft- 
ing oi  the  Constitution  and  Provision  of  Adequate  Means  for  Ef- 
fecting Constitutional  Changes. 

The  Constitution  ot  the   United  States  a  Model  of  Proper  Drafting. 

Defective  Character  of  the  Constitutions  ot  Many  of  the  States  of  the 
United  btates  from  Uie  Standpoint  ot  Proper  Drafting. 

Early   Constitutions  Characterized   by   Excessive   Rigidity. 

Present    ieuclenc>   towards  iviore  Flexible  Constitutions. 

Two  Methods  of  Modifying  Constitutions:  By  Formal  Act  and  by  In- 
formal Action. 

Modification  of  Constitutions  by  Formal  Act. 

Distinction  between  Constituent  and  Legislative  Powers. 

Distinction  between  Constituent  and  Legislative  Powers  and  the  Manner 
of  Their  Exercise  the  Prime  Factor  in  Determining  Methods  of 
Modifying  Constitutions. 

System  of  Complete  Surrender  by  the  Electorate  of  the  Exercise  of 
Constituent  Powers  to  the  Government. 

Complete  Surrender  to  the  Government  ot"  the  Exercise  of  Constituent 
Powers  may  or  may  not  Involve  Abolition  of  the  Legal  Distinction 
between  Constituent  and  Legislative  Powers. 

The  English  System  an  Example  of  Complete  Surrender  to  the  Govern- 
ment of  the  Exercise  of  Constituent  Powers  and  Abolition  of  the 
Legal  Distinction  between  Constituent  and  Legislative  Powers. 

The  French  System  an  Example  of  Complete  Surrender  to  the  Govern- 
ment of  the  Exercise  of  Constituent  Powers  with  Maintenance  of  the 
Legal  Distinction  between  Constituent  and  Legislative  Powers. 

System  of  Retention  by  the  People  of  Participation  in  the  Exercise  of 
Constituent  Powers. 

Distinction  between  the  Revision  and  the  Amendment  of  Constitutions. 

The  Revision  of  Constitutions. 

The  Amendment  of  Constitutions. 

Distinction  between  the  Initiation,  Adoption  and  Ratification  of  Amend- 
ments. 

The  Initiation  of  Amendments. 

The  Adoption   of  Amendments. 

The   Ratification   of  Amendments. 

Special  Problems  Involved  in  the  Revision  and  Amendment  of  Constitu- 
tions of  Federal  Governments. 

The  Revision  and  Amendment  of  the  Federal  Constitution  of  the  United 
States. 

The  Revision  and  Amendment  of  Constitutions  of  Autocracies. 

Futility  of  the  Attempt  to  Declare  Certain  Provisions  of  a  Constitution 
Unamendable. 

The  Informal  Modification  of  Constitutions. 

PART  IV:  THE  DETERMINATION  OF  THE  SCOPE 
AND  POWERS  OF  GOVERNMENT 

CHAPTER  VIII.    THE  JURISDICTION  OF  GOVERNMENT    .     .     .   149 

Dual  Function  of  a  Constitution:  Determination  of  Jurisdiction  of 
Government  and  Form  of  Government. 

Twofold  Character  of  the  Problem  of  Determining  the  Jurisdiction  of 
Government. 

Three  Methods  of  Providing  for  the  Guarantee  of  Individual  Rights. 

The  Method  of  the  United  States  that  of  Definite  Specification  in  its 
Constitution. 

The  Method  of  England  that  of  Refraining  from  a  Definite  Statement  of 
Individual  Rights. 

The  Methods  of  France  and  Germany  Analogous  to  that  of  England. 

Comparison  of  the  Two  Methods. 

The  Method  of  Switzerland,  Japan  and  China  that  of  the  Statement  of 
Rights  in  the  Constitution  Subject  to  Further  Legislative  Determina- 
tion. 

The  Nature  of  Individual  Rights. 


xii  CONTENTS 

PAGB 

Individual  Liberty. 
Property  Rights. 
Equality  before  the  Law. 
Political  Rights. 
Procedural  Rights. 
No  Rights  Ahsolut*. 
Individual  Rights  versus  Social   Rights. 

Fallacy  in  the  Attempt  to  Justify  the  Guarantee  of  Individual  Rights  by 
an  Appeal  10  Natural   Law. 

CHAPTER  IX.    THE  FUNCTIONS  OF  GOVERNMENT    ....   169 

The  Five  Schools  of  Political  Thought. 

The  Anarchistic   School. 

The  Individualistic  School. 

Attempted  Distinction  between  the  Essential  and  Non-Essential  Functions 

of  Government. 

Rise  of  the  School  of  Individualism. 
The  Collectivistic  School. 
The  Socialistic  School. 
The  Communistic  School. 

PART  V:    THE  ORGANIZATION  OF  GOVERNMENTS 

CHAPTER  X.    THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS 

TERRITORIALLY .   181 

The  Unity  of  Government. 

Necessity   for  the   Distribution  of  Governmental   Powers. 

Twofold  Method  of  Distributing  Governmental  Powers:     Territorial  and 

Functional. 

Distinction  between  Administrative  Districts  and  Political  Subdivisions. 
System  of  Political  Divisions  of  Modern  Governments. 
Analysis   of  the   Problem   of   the   Distribution  of   Governmental   Powers 

Territorially. 
Determination  of  the  Authority  by  which  the  Territorial  Distribution  of 

Powers  shall  be  Made. 

Distinction  between  a  Unitary  and  a  Multiple  Government. 
Comparison  of  the  Relative  Merits  of  Unitary  and  Multiple  Governments. 
The  Problem  of  Local  Self-Government  under  a  Unitary  and  a  Multiple 

Government. 

The  Establishment  of  Multiple  Governments  due  almost  wholly  to  His- 
torical  Reasons. 

The  Multiple  Governments  of  Central  and   South  America. 
Adoption  of  the  Unitary  Type  of  Government  by  South  Africa  and  China. 
Universal  Tendency  in  Multiple  Governments  to  Increase  the  Powers  of 

the  Central  Government. 
Interpretation  of  these  Historical  Facts. 
Determination   of  the   Powers   of  the  Central   Government  and  those   of 

Constituent  States  in  a  Multiple   Government. 
Relations  between  the  Central  Government  and  those  of  the  Constituent 

States  in  a  Multiple  Government. 
Intergovernmental  Relations  in  the  United  States. 
Relations  between   the  Central   and   the   State  Governments, 
Relations  of  the  States  among  Themselves 

The  Division  of  the  Territory  of  a  State  into  Major  Political  Divisions. 
Division  of  the  United  States  into  States. 

CHAPTE^  XI.  I  THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS 

FU^CJ/ONALLY 227 

Analysis  of  the  Problem. 

The  Classification  of  Governmental  Powers. 


CONTENTS  xiii 

PAGE 

The  Traditional  Threefold  Classification  of  Governmental  Powers  into 
Legislative,  Judicial  and  Executive. 

A  More  Satisfactory  Classification  that  of  a  Hvefold  Division  into  Elec- 
toral, Legislative,  Judicial,  Executive  and  Administrative. 

The  Electorate  as  a  Distinct  Branch  of  Government. 

A.ir«;^ct..qtinti  a s  a  Distinct  B,pflcJi  nf,  GPYeTnmeqt» 

-Tire-QTtestWn'  of  the' Union  or  Separation"'^ '"KWfers. 

Status  of  Organs  Exercising  the  Several  Powers  in  the  Two  Types  of 
Government:  Those  of  Union  of  Powers  and  Separation  of  Powers. 

Distinction  between  a  Personal  and  an  Organic  Union  or  Separation. 

The  English  Government  One  of  Separation  of  Powers  Organically  and 
Union  of  Powets  Personally. 

The  United  States  Government  One  of  Union  of  Powers  Organically  and 
Separation  of  Powers  Personally. 

Comparison  of  the  Systems  of  a  Union  and  a  Separation  of  Powers. 


PART  VI:  THE  ORGANIZATION  OF  THE  SEVERAL 
BRANCHES  OF  GOVERNMENT 

CHAPTER  XII.    THE  ELECTORAL  BRANCH 271 

The  Electorate  the  Foundation  of  Popular  Government 

Determination  of  the  Composition  of  the  Electorate. 

Determination  of  the  Electorate  a  Matter  of  Expediency:     The  Electoral 

Franchise  not  a  Natural   Right. 
The  Electorate  in  a  Popular  Government  the  Actual  Possessor  of  Legal 

Sovereignty. 

The  Right  of  Revolution. 

The  English  Reform  Act  of  1832  Forced  by  Threat  of  Revolution. 
The   Right   of   Revolution   as  Illustrated   by    Dorr's   Rebellion   in   Rhode 

Island  in  1841. 
The  Problem  of  Electoral  Procedure. 

CHAPTER  XIII.    THE  LEGISLATIVE  BRANCH 289 

Analysis  of  the  Problem., 

Determination  of  the  Functions  or  Duties  of  the  Legislative  Branch. 

Congress  as  a  Constituent  Assembly  or  Constitutional  Convention. 

Congress  as  a  Canvassing  Board  and  Electoral  College. 

Congress  as  an  Organ  of  Public  Opinion. 

Congress  as  a  Board  of  Directors  of  the  Government  Corporation. 

Congress  as  an  Organ  of  Legislation. 

Congress  as  an  Executive  Council. 

Congress  as  a  High  Court  of  Justice. 

Determination    of   the    Structural    Character   of   the   Legislative   Branch; 

Unicameral  or  Bicameral  Legislature. 
Historical   Development  of  the   Bicameral   System. 
Comparison  of  the  Unicameral  and  Bicameral  Systems. 
Determination  of  the  Composition  and  Method  of  Selection  of  Members 

of  the  Legislative  Branch. 
The  Question  of  Size. 
The  Length  of  Term  of  Members. 
The  Qualifications  of  Members. 
The  Method  of  Selection  of  Members:     The  General  Ticket  and  District 

Plans. 

The  Question  of  Minority  or  Proportional  Representation. 
The  Requirement  of  a  Majority  or  a  Plurality  in  order  to  Elect. 
Determination  of  the  Life  or  Duration  of  Legislatures. 
Determination  of  the  Powers  and  Privileges  of  Legislatures. 
The  Determination  of  the  Methods  of  Procedure  of  Legislatures. 


xiv  CONTENTS 

PAGE 

CHAPTER  XIV.    THE  EXECUTIVE  BRANCH 338 

The  Functions  of  the  Executive  Branch. 

The  Office  of  Chief  Executive. 

Qualifications  of  Chief  Executive, 

Method  of  Selection  of  Chief  Executive. 

Election  of  Chief  Executive  by  Popular  Vote  or  a  Plebiscite. 

Election  of  Chief  Executive  by  the  Legislature. 

Election  of  Chief  Executive  by  a  Specially  Constituted  Electoral  College. 

Succession  to  the  Office  of  Chief  Executive. 

The   Independence  of  the   Chief  Executive   in  the   Performance   of   His 

Executive   Duties. 

Relations  of  the  Chief  Executive  to  the  Other  Branches  of  Government. 
The  Presidential  Type  of  Government. 
The  Responsible  Type  of  Government. 
Comparison  of  the  Two  Systems. 

CHAPTER  XV.    THE  JUDICIAL  BRANCH 360 

The  Function  of  the  Judicial  Branch. 

Courts  as  Bodies  to  Investigate  and  Determine  Facts. 

Courts  as  Bodies  to  Apply  the  Law  to  Ascertained  Facts. 

Courts  as  Bodies  to   Determine  and   Construe  Law. 

Courts    as    Bodies    to    Prevent    Infractions    of    Law    and    Violations    oi 

Rights. 

Courts  as  Bodies  to  Administer  Property. 
The  Organization  of  a  System  of  Courts. 
Judicial  Procedure. 
The  Problem  of  an  Independent  Judiciary. 

CHAPTER  XVI.    THE  ADMINISTRATIVE  BRANCH     .  385 

Non-political  Character  of  the  Administrative  Branch. 

Distinction  between  the  Function  of  Direction,  Supervision  and  Control 

and  that  of  Execution. 
Congress  as  a  Board  of  Directors. 

Organization  and  Administration  of  the  Administrative  Services. 
Problems  of  Organization. 
Problems  of  Personnel. 
Problems  of  Materiel. 
Problems  of  Business  Practice  and  Procedure. 

CHAPTER  XVII    THE  ROLE  OF  POLITICAL  PARTIES  IN  MODERN 

GOVERNMENTS 408 

Political  Parties  a  Recent  Phenomenon. 

Political   Parties   First  Viewed  as  an   Evil. 

Political  Parties  not  a  Deliberate  Creation  of  Law. 

Distinction  between  Political  Parties  inside  the  Government  and  Outside 

the  Government 

Two  Principles  of  Representation:     The  Representative  and  the  Agency. 
The  System  of  Political  Parties  in  England 
The  System  of  Political  Parties  in  the  United  States. 
Comparison  of  the  Party  System  in  England  and  the  United  States, 
The  Two-Party   System. 
Collective  versus  Individual  Responsibility. 
The  System  of  Political  Parties  in  France  and  other  Latin  Countries  of 

Europe. 

The  System  of  Political  Parties  in  Germany. 
The  System  of  Political  Parties  in   Switzerland. 
The  Role  of  Political  Parties  in  the  Establishment  of  Governments. 

INDEX 441 


PART  I 

SOME  FUNDAMENTAL 
CONSIDERATIONS 


THE  GOVERNMENT 
OF  MODERN  STATES 


CHAPTER  I 

INTRODUCTION 

The  Study  of  Government  One  of  Political  Principles 
as  Well  as  of  Mechanical  Structure. —  In  entering  upon 
any  study  the  standpoint  from  which  it  is  approached  is 
of  supreme  importance.  Examination  of  the  problem  of 
the  study  of  government  shows  that  such  study,  if  properly 
prosecuted,  should  do  two  things :  it  should  make  known  the 
character  of  the  institutions  made  use  of  by  States  for 
the  conduct  of  their  affairs,  how  these  institutions  have 
come  into  existence,  the  nature  and  xsource  of  their  powers 
and  the  manner  of  their  operation^  and  it  should  reveal 
and  make  clear  the  significance  of  the  fundamental  prin- 
ciples lying  back  of  these  institutions,  the  motives  that  have 
led  to  their  selection,  and  the  aim  that  it  is  sought  to  ac- 
complish through  them ;  in  a  word,  their  inner  spirit.  Thus, 
to  illustrate,  it  should  make  known  to  students,  not  only 
that  most  States,  in  organizing  the  legislative  branch  of 
their  governments,  have  made  provision  for  one  of  two 
houses,  but  why  they  have  made  this  choice,  what  are  the 
advantages  which  are  supposed  to  inhere  in  a  bicameral, 
as  opposed  to  a  unicameral,  legislature,  what  are  the  dis- 
advantages, if  any,  which  such  a  system  presents,  whether 

3 


4       THE  GOVERNMENT  OF  MODERN  STATES 

such  a  system  is  one  offering  superior  advantages  under 
all,  or  only  certain,  conditions,  and  whether  the  conditions 
now  obtaining  are  such  as  to  justify  the  continued  use  of 
this  system.  Government,  in  a  word,  should  be  so  studied 
as  to  make  a  constant  appeal  to  the  analytical  and  reason- 
ing powers  of  the  student.  No  pains  should  be  spared  to 
make  known  the  principles  which  those  responsible  for 
determining  the  structural  character  of  governments  have 
sought  to  put  into  application,  the  relative  merits  of  these 
principles,  and  the  success  secured  as  measured  by  actual 
results  obtained. 

The  Present  World  War  One  of  Political  Principles. 
—  Important  at  any  time,  a  study  of  government  from  this 
viewpoint  is  especially  desirable  at  the  present  moment  when 
the  nations  of  the  world  are  engaged  in  a  titanic  struggle, 
in  which  the  great  issue  at  stake  is,  not  the  character  of 
government,  mechanically  viewed,  that  shall  prevail,  but 
the  fundamental  political  principles  that  shall  find  expres- 
sion in  all  governments  in  the  years  to  come.  It  is  vital 
that  all  Americans,  and,  if  possible,  all  the  peoples  of  the 
world,  shall  know  what  is  the  real  meaning  of  that  great 
declaration  of  our  President,  in  stating  our  reasons  for 
entering  the  war,  that  the  world  must  be  made  safe  for 
Democracy,  and  all  the  implications  contained  in  it.  The 
governments  of  the  United  States  and  our  western  allies 
differ  from  those  of  the  central  European  powers  to  which 
we  are  opposed,  not  merely  in  respect  to  the  structural  char- 
acter of  their  political  institutions,  but  in  the  basic  prin- 
ciples upon  which  these  institutions  are  founded.  The  most 
important  fact  to  be  learned  regarding  these  governments 
is,  then,  the  difference  in  these  principles  and  why  we  hold 
that  in  our  principles  is  to  be  found  the  only  firm  founda- 
tion for  those  things  which  alone  make  existence  worth 


INTRODUCTION  5 

while  —  individual  liberty,  justice,  and  the  protection  of 
national  rights  of  all  States,  strong  and  weak  —  while,  in 
the  principles  lying  back  of  the  governments  of  our  enemies, 
is  to  be  found  a  continued  threat  against  these  great  ideals. 

Distinction  Between  a  State  and  Its  Government. — 
It  is  unfortunate  that  in  beginning  most  studies,  attention 
must  first  be  paid  to  the  definitions  of  the  more  important 
terms  that  will  be  employed,  to  the  drawing  of  certain 
primary  distinctions,  and  to  the  consideration  of  certain 
abstract  principles  which  lie  at  the  very  basis  of  such  studies. 
The  task  is  one  which,  however,  cannot  be  avoided  if  clear- 
ness of  exposition  and  thinking  is  to  be  subsequently  secured. 
This  is  particularly  true  of  political  science  which,  in  com- 
mon with  other  social  sciences,  has  always  suffered  the 
grave  disadvantages  of  a  loose  use  of  terms  and  a  failure 
on  the  part  of  writers  to  agree  upon  the  very  foundation 
conceptions  upon  which  a  study  of  this  science  must  rest. 
In  this  part  of  our  work  we  will,  however,  be  as  brief  and 
summary  as  due  regard  to  the  points  that  must  be  made 
clear  will  permit. 

In  the  study  of  political  science  constant  use  is  made  of 
the  terms  "  People,"  "  Nation,"  "  State,"  and  "  Govern- 
ment." Though  these  terms  are  often  used  interchange- 
ably, they  connote  quite  different  conceptions  and  should  be 
clearly  distinguished. 

Much  the  most  concise,  and  at  the  same  time  clearest, 
statement  of  the  distinctions  between  these  several  ideas 
and  terms  with  which  the  writer  is  familiar,  is  that  con- 
tained in  the  introductory  chapter  of  the  "  American  Con- 
stitutional System,"  by  the  writer's  brother.1 

An  aggregate  of  men  living  together  in  a  single  community  and 

1W.  W.  Willoughby:  "The  American  Constitutional  System" 
(American  State  Series),  pp.  3-4. 


6        THE  GOVERNMENT  OF  MODERN  STATES 

united  by  mutual  interests  and  relationships  we  term  a  Society. 
When  there  is  created  a  supreme  authority  to  which  all  the  individ- 
uals of  this  society  yield  a  general  obedience,  a  State  is  said  to 
exist.  The  social  body  becomes,  in  other  words,  a  Body  Politic. 
The  instrumentalities  through  which  this  superior  authority  for- 
mulates its  will  and  secures  its  enforcement  is  termed  a  Govern- 
ment; the  commands  it  issues  are  designated  Laws;  the  persons 
that  administer  them,  Public  Officials,  or  collectively,  a  Magis- 
tracy; the  whole  body  of  individuals,  viewed  as  a  political  unit,  is 
called  a  People;  and  finally  the  aggregate  of  rules  and  maxims, 
whether  written  or  unwritten,  that  define  the  scope  and  fix  the 
manner  of  exercise  of  the  powers  of  the  State,  is  known  as  the 
Constitution.  The  State  itself  then  is  neither  the  People,  the 
Government,  the  Magistracy,  nor  the  Constitution.  Nor  is  it  in- 
deed the  territory  over  which  its  authority  extends.  It  is  the 
given  community  of  given  individuals,  viewed  in  a  certain  aspect, 
namely,  as  a  political  unity. 

Of  these  distinctions  much  the  most  important  is  that 
between  the  State  and  Government.  The  State,  to  use  the 
term  employed  in  political  science,  is  the  Body  Politic. 
The  Government  is  merely  the  aggregate  of  the  instrumen- 
talities employed  by  such  body  in  performing  its  functions. 
To  appreciate  the  significance  of  this  distinction  and  its 
bearing  upon  the  problem  of  government,  it  is  necessary 
that  we  should  have  a  clearer  idea  of  precisely  the  nature 
of  this  body  to  which  the  term  State  is  given. 


CHAPTER  II 

THE   NATURE   OF   THE   STATE 

The  State  as  an  Abstraction. —  A  close  reading  of  the 
definition  of  a  State  as  given  in  the  preceding  chapter 
will  show  that  the  State  is  almost  an  abstraction.  It  is 
not  the  territory  over  which  a  single  political  authority 
holds  sway;  nor  the  inhabitants  of  that  territory;  nor  the 
collectivity  of  the  instruments  through  which  it  manifests 
itself  tangibly.  It  is,  if  the  expression  may  be  permitted, 
the  thing  itself,  as  distinguished  from  its  parts  or  outer 
garments.  It  is,  as  the  author  quoted  has  so  aptly  put  it, 
"  the  given  community  of  given  individuals  viewed  in  a 
certain  aspect,  namely,  as  a  political  unity." 

Essential  Characteristics  of  the  State. —  The  foregoing 
definition  carries  us  but  a  short  way.  towards  an  under- 
standing of  the  nature  of  the  State.  To  secure  such  an 
understanding,  it  is  necessary  to  examine  more  closely  what 
are  the  essential  characteristics  of  this  body,  which  is  at 
once  a  reality  and  an  abstraction;  or,  to  put  it  in  another 
way,  to  determine  what  features  must  be  present  before 
one  is  entitled  to  hold  that  a  given  community  constitutes 
a  State. 

Many  attempts  have  been  made  by  writers  on  political 
science  to  consider  this  subject.  For  the  most  part  this 
consideration  is  unsatisfactory,  due  to  the  fact  that  they 
have  failed  to  distinguish  with  sufficient  accuracy  between 
those  features  which  are  usually  present,  such,  for  example, 
as  that  a  State  is  composed  of  a  numerous  assemblage  of 

7 


8        THE  GOVERNMENT  OF  MODERN  STATES 

persons,  and  occupies  a  determined  territory,  and  those 
which  are  essential;  that  is,  that  must  be  present  if  a  State 
can  be  said  to  exist.  In  the  consideration  that  follows  it 
will  be  our  effort  to  indicate  and  discuss  only  those  features 
which  constitute  essential  characteristics  in  this  sense.1 

Desire  on  the  Part  of  a  Community  that  It  Shall  Con- 
stitute a  Body  Politic. —  The  first  and  prime  characteris- 
tic of  a  State  is  that  there  shall  exist  in  a  community  a 
desire  that  it  shall  collectively  constitute  a  body  politic. 
By  this  is  meant  that  the  people  composing  the  community 
shall  appreciate,  or  acquiesce  in,  the  desirability  that  there 
shall  exist  a  central  authority  which  shall  exercise  powers 
in  respect  to,  and  on  behalf  of,  all  the  members  composing 
the  community.  Such  an  authority  is  termed  the  political 
authority,  the  power  exercised  by  it,  political  powers,  and 
the  community  of  persons  viewed  from  this  standpoint,  a 
body  politic  or  a  State. 

As  the  author  quoted  clearly  puts  it :  2 

A  State  owes  its  existence  to  the  fact  that,  in  the  individuals 
over  whom  its  authority  extends,  there  is  a  sentiment  of  unity  suf- 
ficiently strong  to  lead  them  to  surrender  themselves  to  the  con- 
trol of  a  single  political  power  for  the  sake  of  realizing  the  desires 
to  which  such  a  sentiment  gives  rise.  In  other  words,  this  sub- 
jective condition  first  comes  into  being,  and  when  sufficiently  pow- 
erful, finds  objective  manifestation  in  the  creation  of  a  political  or- 
ganization. 

In  most  cases  a  desire  or  acquiescence  of  this  character  has 
come  into  existence  unconsciously.  Only  in  a  few  and  very 

xThat  the  possession  of  a  determined  territory  is  not  an  essential 
characteristic  of  a  State  is  evidenced  by  the  recognition  on  the  part  of 
the  "  Allies "  that  the  Czecho-Slovaks  constitute  a  State  though  they 
are  at  present  in  the  possession  of  no  defined  territory. 

2  Op.  cit.,  p.  6. 


THE  NATURE  OF  THE  STATE  g 

exceptional  cases  has  a  community,  politically  unorganized, 
determined,  as  a  matter  of  deliberate  action,  to  constitute 
itself  into  a  body  politic.  Certainly  the  most  remarkable, 
if  it  is  not  an  unique,  example  of  where  action  of  this  char- 
acter has  been  taken,  is  that  whereby  the  Pilgrims  on  the 
Mayflower  in  1620  assembled  and  affixed  their  names  to  a 
solemn  covenant  by  which  they  bound  themselves  to  con- 
stitute themselves  a  body  politic,  and  to  yield  obedience  to 
the  political  authorities  that  should  be  selected  to  exercise 
the  powers  of  that  body.  This  famous  agreement  in  mod- 
ern English  reads: 

In  the  name  of  God,  Amen:  We  whose  names  are  under- 
written, the  loyal  subjects  of  our  dread  sovereign,  Lord  King 
James,  by  the  Grace  of  God,  of  Great  Britain  and  Ireland,  King, 
Defender  of  the  Faith,  etc.,  having  undertaken  for  the  glory  of 
God  and  advancement  of  the  Christian  faith  and  honor  of  our 
king  and  country,  a  voyage  to  plant  the  first  colony  in  the  northern 
part  of  Virginia,  do  by  these  presents  solemnly  and  mutually,  in  the 
presence  of  God  and  one  another,  covenant  and  combine  ourselves 
together  into  a  Civil  Body  Politic  for  our  better  ordering  and  pres- 
ervation and  furtherance  of  the  ends  aforesaid;  and,  by  virtue 
hereof,  to  enact,  constitute  and  frame  such  just  and  equal  laws, 
ordinances,  acts,  constitutions  and  offices  from  time  to  time  as  shall 
be  thought  most  meet  and  convenient  for  the  general  good  of  the 
colony  unto  which  we  promise  all  due  submission  and  obedience. 

In  witness  whereof,  etc. 

The  fact  that  allegiance  was  pledged  to  the  King  of  Eng- 
land and  no  intention  was  manifested  of  creating  an  in- 
dependent political  authority  in  one  sense  prevents  this 
act  from  being  an  example  of  the  deliberate  creation  of  a 
State  in  the  fullest  acceptation  of  the  term.  It  does  furnish, 
however,  an  excellent  example  of  what  is  meant  by  the  neces- 
sity that  there  shall  exist  on  the  part  of  a  community  a  de- 


io      THE  GOVERNMENT  OF  MODERN  STATES 

sire  to  constitute  itself  into  a  body  politic,  in  order  that  a 
State  may  come  into  existence. 
Of  this  act  John  Quincy  Adams  said : 

This  is  perhaps  the  only  instance  in  human  history  of  that  posi- 
tive, original,  social  compact  which  speculative  philosophers  have 
imagined  as  the  only  legitimate  source  of  government.  Here  was 
a  unanimous  and  personal  assent  by  all  the  individuals  of  the  com- 
munity to  the  association  by  which  they  became  a  nation  (i.e. 
State).1 

At  the  present  time  we  have  a  number  of  striking  in- 
stances where  this  initial  step  looking  towards  the  creation 
of  a  State  is  being  taken.  In  the  territories  formerly  ruled 
over  by  Russia  and  Austria-Hungary  various  peoples  having 
a  common  race  origin  are  making  known  their  desire  that 
they  shall  become  independent  States.  Of  these  the  Finns, 
Poles,  Czecho-Slovaks,  and  Jugo-Slavs  are  apparently  on 
the  way  towards  success.  Whether  other  peoples,  such  as 
the  Ukrainians,  will  be  equally  successful  still  remains  un- 
certain. Few  issues  of  the  present  war  are  more  impor- 
tant than  that  of  the  extent  to  which  its  outcome  will  be 
the  addition  of  new  States  to  the  commonwealth  of  nations. 

Necessity  That  This  Desire  Shall  Find  Actual  Ex- 
pression.—  Though  the  desire  on  the  part  of  a  community 
that  it  shall  constitute  a  body  politic  constitutes  the  funda- 
mental condition  that  must  be  present  if  a  State  is  to  come 
into  existence,  that  desire  alone  is  not  sufficient  to  accom- 
plish this  result:  it  must  find  expression  in  actual  action. 
It  is  thus  probably  true  that  the  people  of  Poland  desire 
ardently  that  they  shall  constitute  a  separate  body  politic. 
The  same  is  also  probably  true  of  other  peoples.  In  neither 
case,  however,  does  a  State  result.  In  order  that  a  State 

1  Quoted  in  Goodwin's  "  The  Pilgrim  Republic,"  Boston,  1888. 


THE  NATURE  OF  THE  STATE  11 


may  come  into  being,  it  is  necessary  that  the  community 
having  the  desire  to  be  a  body  politic  shall  actually  proceed 
to  organize  itself  as  a  State,  and  to  bring  into  existence  a 
government  through  which  the  State  may  act. 

The  State  an  Entity,  Indivisible  and  Immutable. —  A 
third  feature  characteristic  of  the  State  is  that  it  possesses 
a  unity  which  is  indivisible  and  immutable.  It  is  like  the 
individuality  of  a  person.  It  is  complete  in  itself;  it  can- 
not be  shared  with  any  other  body;  it  is  incapable  of  being 
either  divided  or  of  undergoing  change.  It  is  in  respect 
to  this  characteristic  that  it  is  so  important  to  distinguish 
between  State  and  government.  A  State  can  change  its 
government  as  often  as  it  desires  as  an  individual  changes 
his  clothes,  without  itself  undergoing  any  change.  It  can 
make  use  of  one  system  of  authorities  for  the  administra- 
tion of  its  affairs,  as  is  done  where  the  system  of  govern- 
ment adopted  is  the  type  known  as  unitary,  or  it  can  make 
use  of  two  schemes,  as  is  done  where  what  is  known  as  a 
multiple  or  federal  form  of  government  is  established,  with- 
out affecting  in  the  slightest  the  character  of  the  State. 

This  point  is  of  special  importance  since  almost  invariably 
the  mistake  is  made  by  writers  on  political  science  of  desig- 
nating a  State  having  a  unitary  government  as  a  Unitary 
State,  and  one  having  a  federal  government  as  a  Federal 
State.  This  is  exceedingly  unfortunate  since  it  obscures 
the  essential  nature  of  the  State  and  its  distinction  from  gov- 
ernment. If  we  understand  the  real  nature  of  the  State, 
we  must  see  that  the  distinction  there  sought  to  be  made  is 
impossible.  The  very  conception  of  the  State  implies  unity, 
indivisibility. 

There  is  thus  a  State  of  the  United  States,  notwithstand- 
ing its  federal  form  of  government,  that  is  as  definitely  a 
unit  as  the  State  of  France,  or  any  other  State  having  a 


12     THE  GOVERNMENT  OF  MODERN  STATES 

unitary  government.  The  fact  that  the  people  of  the  former 
have  preferred  to  bring  into  existence  two  schemes  of  gov- 
ernment for  the  conduct  of  their  political  affairs,  while 
those  of  the  latter  have  preferred  to  make  use  of  but  a 
single  system,  represents  merely  a  difference  of  choice  in 
respect  to  means  to  be  employed,  not  different  in  kind  from 
all  other  differences  in  governmental  detail,  no  matter  how 
apparently  insignificant. 

Force  or  Compulsion  as  an  Attribute  of  the  State.— 
Another  attribute  universally  ascribed  to  the  State  is  that 
of  force  or  compulsion,  or  rather  the  right  and  the  obliga- 
tion to  make  use  of  such  force  as  may  be  necessary  to  in- 
sure that  its  will  when  duly  expressed  is  carried  into  execu- 
tion. Manifestly  the  mere  possession  of  authority  would 
be  meaningless  without  the  power  to  make  this  authority 
prevail.  This  a  State  can  only  secure  when  it  has  the  power 
and  the  right  to  use  such  power  as  may  be  necessary  to  com- 
pel compliance  with  its*mandates.  Not  only  must  the  State 
thus  possess  the  right  to  employ  force  in  order  to  compel 
compliance  with  its  orders,  but  it,  as  the  possessor  of 
supreme  authority,  alone  determines  the  form  that  the  com- 
pulsion will  take  and  the  instrumentalities  that  will  be  em- 
ployed in  its  exercise.  One  of  the  great  problems  presented 
to  a  State  in  establishing  for  itself  a  government  is  to  de- 
termine the  means  that  shall  be  made  use  of  by  it  for  en- 
forcing its  will. 

Law  as  an  Attribute  of  the  State. —  Another  feature 
claimed  to  be  characteristic  of  the  State  is  that  it  not  only 
exercises  its  authority  through  the  formulation,  promulga- 
tion, administration  and  enforcement  of  general  orders 
which  are  known  as  laws,  but  that,  from  a  strictly  juristic 
sense,  it  is  the  sole  source  of  law.  As  it  is  expressed  by 
the  author's  brother  in  the  passages  from  his  book  that 


THE  NATURE  OF  THE  STATE       13 

have  been  quoted,  "The  commands  that  it  (the  State)  is- 
sues are  designated  laws.  ...  In  the  entire  body  of  laws 
of  a  State  are  summed  up  the  powers  of  the  State  as  actually 
exercised." 

It  is  very  much  of  a  question  whether  this  is  strictly  so. 
When  one  speaks  of  law  as  an  essential  characteristic  or 
attribute  of  the  State  one  has  in  mind  primarily  the  modern 
State  as  it  exists  in  the  West.  If  we  turn  to  the  East, 
such  as  it  was  before  it  began  to  westernize  its  political 
institutions,  we  find  undoubted  States  in  which  law,  as  that 
term  is  properly  employed  in  a  juristic  sense,  plays  but  a 
a  minor  or  secondary  role.  Here,  as  will  be  later  pointed 
out,  the  State  has  brought  into  existence  a  type  of  govern- 
ment known  as  an  Absolutism.  It  is  the  prime  character- 
istic of  such  States  that  the  organ  through  which  they 
exercise  all  their  powers,  the  ruler  or  sovereign,  can  and 
does  act  in  an  autocratic  manner ;  that  is,  he  is  bound  by  no 
law  and  governs,  not  through  law,  but  by  the  exercise  of  his 
arbitrary  will.  There  can  be  no  question  but  that  such  a 
community  constitutes  a  State  in  the  fullest  acceptation  of 
the  word.  But  it  would  be  hard  to  say  that  his  commands, 
when  each  command  may  relate  to  but  a  single  individual 
or  act,  and  may  vary  as  they  relate  to  different  individuals 
and  acts,  as  his  arbitrary  will  dictates,  are  entitled  to  be 
designated  laws.  Indeed  this  fact,  whether  the  affairs  of 
State  are,  or  are  not,  conducted  through  the  issuance  and 
enforcement  of  laws,  constitutes  the  essential  difference 
between  the  two  great  classes  of  governments  into  which  all 
governments  are  primarily  divided. 

It  is  thus  well  to  think  of  law  as  an  attribute  of  the 
State  in  the  sense  that  the  latter  is  the  true  source  of  all  law, 
but  it  should  at  the  same  time  be  borne  in  mind  that  a  State 
can  exist  and  discharge  its  function  without  making  any,  or 


H      THE  GOVERNMENT  OF  MODERN  STATES 

only  incidental  use,  of  this  instrumentality.  It  is  in  the 
adoption  of  the  policy  of  governing  through  law  that  the 
greatest  advance  has  been  made  in  the  evolution  of  govern- 
ment. 

The  State  as  the  Possessor  of  Supreme  and  Unlim- 
ited Authority:  The  Attribute  of  Sovereignty. —  An- 
other essential  feature  of  the  State  is  that  it  possesses  an 
authority  which  is  at  once  supreme  and  unlimited  or,  to 
use  a  legal  expression,  a  jurisdiction  the  scope  and  extent  of 
which  is  unlimited.  [This  attribute  of  supreme  and  un- 
limited authority  is  designated  in  political  science  as  Sov- 
ereignty. I  It  constitutes  by  far  the  most  essential  and  char- 
acteristic feature  of  the  State.  As  the  writer's  brother  ex- 
presses it : l 

The  one  characteristic  that  is  essential  to  the  State,  and  serves  to 
distinguish  it  in  toto  genere  from  all  other  human  associations,  is 
its  possession  of  political  sovereignty.  By  political  sovereignty  is 
meant,  on  the  one  hand,  complete  freedom  from  the  legal  control 
of  any  other  power  whatsoever,  and,  on  the  other  hand,  absolute 
and  exclusive  control  over  the  legal  rights  and  obligations  of  its 
citizens  individually  considered  or  grouped  into  larger  or  smaller 
associations.  The  State  is  thus  supreme,  not  only  as  giving  the 
ultimate  validity  to  all  laws,  but  as  itself  determining  the  scope  of 
its  own  legal  powers  and  the  manner  of  their  exercise.  .  In  every 
politically  organized  community  that  is  entitled  to  be  termed  a 
State  there  must  exist  thus  an  authority  to  which,  from  the  legal 
standpoint,  all  interests  are  potentially  subject.  In  the  entire  body 
of  laws  of  a  State  are  summed  up  the  powers  of  the  State  as  actu- 
ally exercised. 

It  is  impossible  to  lay  too  great  stress  upon  the  impor- 
tance of  this  attribute  of  sovereignty  of  the  State.  Su- 
preme, final  authority  must  lie  somewhere,  and,  in  a 

1  Op.  tit.,  p.  4. 


THE  NATURE  OF  THE  STATE  15 

politically  organized  community,  it  lies  in  the  State.  It  is 
in  respect  to  this  attribute  that  we  see  the  essential  differ- 
ence between  the  State  and  the  government.  The  author- 
ity of  the  State  is  unlimited;  that  of  the  government  only 
such  as  the  people  acting  as  a  body  politic,  that  is  as  a  State, 
choose  to  con  fere  upon  it.  The  State  is  the  principal  with 
inherent  unlimited  powers;  the  government  an  agent  with 
only  such  powers  as  its  principal  may  choose  to  confer  upon 
it  and  those  powers  moreover  it  can  exercise  only  in  the 
manner  prescribed  by  the  State. 

It  is  in  respect  to  this  attribute,  and  the  distinction  in 
respect  to  its  possession  between  the  State  and  the  govern- 
ment, that  one  must  view  the  whole  great  question  of  the 
enunciation  and  guarantee  of  so-called  individual  rights. 
There  is  no  such  thing  as  the  protection  of  individual  rights 
or  liberties  against  the  State.  As  Professor  Burgess  has 
excellently  put  it :  * 

The  individual  is  defended  in  this  sphere  against  the  government 
by  the  power  that  makes  and  maintains  and  can  destroy  the  gov- 
ernment, and  by  the  same  power  through  the  government  against 
encroachment  from  any  other  quarter.  Against  that  power  itself, 
however,  he  has  no  defense. 

Significance  of  the  Creation  of  a  State :  Surrender  of 
Individual  Wills  to  a  Collective  Will. —  Accustomed  as 
we  are  to  living  as  members  of  a  State,  and  having  known 
no  other  condition,  it  is  difficult  for  us  to  realize  the 
profound  significance  of  this  act  by  which  a  people  is  con- 
verted into  a  body  politic  and  a  State  is  brought  into  ex- 
istence. We  have  seen  that  the  State  is  a  body  having 
supreme,  unlimited  powers.  The  result  of  this  is  that  it  is 

1  Burgess :  "  Political  Science  and  Constitutional  Law,"  I,  176,  quoted 
by  W.  W.  Willoughby,  cp.  cit.,  p.  5. 


16      THE  GOVERNMENT  OF  MODERN  STATES 

the  final  authority  determining  human  conduct.  There  can- 
not be  two  supreme  wills.  The  conversion  of  a  people  into 
a  State  means  therefore  that  by  this  act  the  people  have 
surrendered  their  individual  wills  as  the  final  arbiter  and 
determiner  of  conduct  in  favor  of  a  collective  will.  Po- 
tentially, legally,  the  State  can  determine  in  the  minutest 
detail  the  conduct  and  every  act  of  the  individuals  com- 
posing it.  The  fact  that  no  State  in  practice  attempts 
to  do  this  in  no  way  alters  the  fact  of  the  possession  by  the 
State  of  such  powers.  The  fact  is,  however,  that  the  State 
goes  much  further  in  this  direction  than  is  ordinarily  ap- 
preciated. In  the  modern  State  one  lives  under  an  ex- 
ceedingly elaborate  body  of  laws.  Only  as  one  takes  de- 
liberate thought  can  he  appreciate  to  how  large  an  extent 
his  acts  are  controlled,  not  by  his  individual  will,  but  by  the 
collective  will  of  the  State.  He  may  seem  to  act  freely  but 
he  acts  within  the  orbit  prescribed  by  the  State  and  follows 
rules  of  conduct  laid  down  by  it. 

What  we  now  speak  of  as  individual  liberties  are  merely 
the  liberties  which  the  State,  as  a  matter  purely  of  policy 
or  expediency,  determines  shall  be  left  to  individual  deter- 
mination. The  power  possessed  by  the  individual  in  re- 
spect to  these  is  in  the  nature  of  a  delegated  power.  At 
any  moment  the  State,  acting  through  the  machinery  it  has 
provided  for  itself,  can  enter  this  field  and  cancel  the 
powers  that  it  has  granted  or  permitted.  This  it  is  con- 
stantly doing  as  emergencies,  such  as  those  caused  by  in- 
ternal disturbances  or  foreign  war,  seem  to  make  such 
action  advisable. 

The  Paradox  of  Freedom  Through  Restraint ;  of  Lib- 
erty Through  Law. —  This  phenomenon  that  the  estab- 
lishment of  a  State  means  the  absolute  negation  of  indi- 
vidual liberty  as  an  inherent  individual  possession;  that,  by 


THE  NATURE  OF  THE  STATE  17 

the  creation  of  a  State,  or  acquiescence  in  the  existence  of 
a  State,  the  individuals  composing  it  substitute,  or  permit 
the  substitution  of,  a  collective  will  for  their  individual  wills, 
is  one  which  has  given  rise  to  a  large  amount  of  philoso- 
phical inquiry.  The  questions  sought  to  be  answered  are : 
Why  is  it  that  individuals  should  thus  abdicate  as  rulers 
of  their  own  conduct  in  favor  of  an  authority  in  which 
they  as  individuals  can  exercise  but  an  infinitesimal  voice? 
Why  will  they  exchange  a  condition  of  independence  for 
one  of  subjection?  What  is  the  justification,  morally,  for  a 
collective  will  to  control  individual  wills  in  the  case  of  those 
individuals  who  generally,  or  in  individual  instances,  are 
unwilling  to  recognize  the  validity  of  this  collective  author- 
ity? 

It  would  take  us  much  too  far  to  attempt  to  follow  out 
in  detail  the  philosophical  speculations  to  which  these  ques- 
tions have  given  rise.  They  are  mentioned  here  primarily 
for  the  purpose  of  making  known  to  readers  this  interest- 
ing collateral  field  of  political  science.  Here  we  will  con- 
tent ourselves  merely  with  the  statement  that  the  solution  of 
the  questions  propounded  is  to  be  found  primarily  in  the 
paradox  that,  through  the  seeming  surrender  of  individual 
liberty,  the  actual  effective  enjoyment  of  such  liberty  is 
increased;  that,  in  a  state  of  society,  real  freedom  is  only 
achieved  through  restraint;  liberty  through  law.  One  or 
two  examples  will  make  this  clear. 

The  freedom  of  an  individual  to  go  where  he  chooses  is 
manifestly  a  reality  only,  when  others  stronger  than  he  do 
not  interfere  with  the  enjoyment  of  this  freedom.  The 
freedom  of  an  indivdiual  to  enjoy  the  fruits  of  his  own 
labor  is  evidently  but  a  theoretical  freedom  if  any  one 
stronger  than  he  can  freely  take  such  fruits  from  him.  In 
a  condition  of  no-state,  of  no  laws,  real  individual  freedom, 


i8      THE  GOVERNMENT  OF  MODERN  STATES 

in  the  sense  of  power  to  do  as  one  chooses,  would  thus  be 
the  possession  of  but  the  few  who  were  possessed  of  superior 
strength.  Only  by  law,  by  the  restraint  of  these  few  by 
the  exertion  of  a  collective  will,  in  other  words  by  State 
action,  can  individual  liberty  or  freedom  be  made  a  general 
possession.  It  is  the  appreciation  of  this,  though  such 
appreciation  is  more  or  less  unconscious,  that  has  led  to 
the  establishment  of  the  State  wherever  man  has  emerged 
from  barbarism.1 

Difficulty  at  Times  in  Determining  Whether  a  Given 
Community  is  a  State. —  No  little  difficulty  arises  at  times 
in  determining  whether  a  given  community  possesses  to  a 
sufficient  extent  the  desire  to  be  a  body  politic,  or,  possessing 
the  desire,  has  succeeded  in  establishing  a  governmental  or- 
ganization which  is  of  sufficient  definiteness  and  stability, 
and  has  been  acquiesced  in  by  the  community  as  the  true 
organ  of  the  State  to  a  sufficient  extent  to  entitle  such  com- 
munity to  be  designated  a  State  and  to  receive  recognition 
as  such  by  other  States.  This  question  always  presents 
itself  when  a  peo'ple  or  a  part  of  a  people  refuse  allegiance 
to  the  existing  political  authorities  and  seek  to  bring  into 
existence  another  organization  for  the  expression  and  ac- 
complishment of  their  political  aims.  The  question  is  thus 
presented  as  to  whether  the  Filipino  Republic  organized  by 
Aguinaldo  which  the  American  forces  were  compelled  to  put 
down  before  establishing  American  rule  in  the  Philippines 
was  entitled  to  be  designated  a  State.  When  a  country 
is  engaged  in  civil  war  does  each  side  constitute  a  State? 
Did  the  Confederate  States  of  America  constitute  a  State? 

1  For  a  consideration  of  this  question  see  Dicey:  "Law  and  Public 
Opinion  in  England  in  the  Nineteenth  Century,"  and  W.  F.  Willoughby, 
"The  Philosophy  of  Labor  Legislation."  Presidential  Address,  Amer- 
ican Association  for  Labor  Legislation,  American  Labor  Legislation 
Review,  March,  1914. 


THE  NATURE  OF  THE  STATE       19 

It  is  manifestly  undesirable  that  we  should  breuk  our 
consideration  of  principles  to  attempt  to  discuss  in  detail 
each  of  these  special  cases.  As  the  decision  is  one  resting 
upon  facts  as  well  as  principles  it  is  moreover  doubtful 
whether  a  general  agreement  could  be  reached  in  all  cases. 
The  author  believes,  however,  that  in  all  cases  where  the 
desire  to  be  a  body  politic  is  plainly  present,  and  where  a 
bona  fide  government  has  actually  been  organized  for  the 
conduct  of  political  affairs,  that  community,  from  the  stand- 
point of  political  science,  is  entitled  to  be  designated  a  State, 
even  though  it  has  not  succeeded  in  overcoming  opposition 
from  other  communities  to  the  maintenance  of  such  a  status. 
To  the  author  the  formal  recognition  of  a  State  by  other 
States  is  rather  the  general  recognition  of  what  already  ex- 
ists than  in  itself  constituting  an  act  essential  to  the  coming 
into  existence  of  a  State. 

So-Called  Non-Sovereign  States,  Quasi-Sovereign 
States,  States  with  Impaired  Sovereignty,  Neutralized 
States,  etc. —  One  frequently  hears  the  expression  "  Sov- 
ereign State "  and,  in  contradistinction  to  these,  States 
which  are  not  completely  sovereign,  which  have  had  their 
sovereignty  impaired,  etc.  One  thus  hears  the  United 
States,  Great  Britain,  France,  and  the  other  great  powers 
of  the  world  designated  as  Sovereign  States  while  such 
nations  as  Cuba,  China  and  Persia  are  referred  to  as  States 
of  Impaired  Sovereignty,  and  still  other  nations,  the  po- 
litical affairs  of  which  are  more  or  less  controlled  by  some 
other  power,  as  States  which  have  almost  wholly  surrend- 
ered their  sovereignty.  In  the  interest  of  clear  thinking  it 
is  important  to  determine  the  extent  to  which  any  such  dis- 
tinctions are  warranted,  or  the  sense  in  which  they  should 
be  employed. 

We  have  seen  that  sovereignty  is  an  essential  attribute  of 


20      THE  GOVERNMENT  OF  MODERN  STATES 

the  State  and  that  it  represents  supreme,  unlimited  and  in- 
divisible authority.  This  being  so  it  is  evidently  impossible 
to  speak  of  a  Non-sovereign  State,  much  less  of  one  with  im- 
paired sovereignty.  It  is  even  tautological  to  speak  of  a 
Sovereign  State.  There  can  be  no  doubt  about  the  differ- 
ences in  the  conditions  under  which  the  powers  of  the  sev- 
eral States  which  it  is  sought  to  distinguish  in  this  way 
are  exercised.  Confusion  arises  in  expressing  these  differ- 
ent conditions,  partly  through  a  failure  to  keep  strictly  in 
mind  the  essential  nature  of  the  true  political  State  and 
of  sovereignty  as  the  most  essential  attribute  of  such  State, 
partly  through  the  use  of  the  word  State  to  designate  given 
politically  organized  communities  as  distinct  from  the  purely 
political  or  abstract  conception  of  The  State,  and  partly 
through  the  general  mistake  of  describing  sovereignty  as 
constituting  supreme,  unlimited  power  instead  of  supreme, 
unlimited  authority.  Authority  and  power  are  two  quite 
different  things.  A  person  or  body  may  quite  easily  possess 
unquestioned  authority  but  lack  the  power  or  the  will  to  use 
it.  This  is  true  of  actual  States  as  well  as  of  persons  and 
other  bodies. 

If  we  keep  these  several  distinctions  clearly  in  mind  we 
will,  I  think,  have  little  difficulty  in  determining  the  true 
political  status  of  those  States  whose  sovereignty  is  alluded 
to  as  impaired  or  incomplete.  Thus,  for  example,  there  can 
be  no  doubt  that  China,  notwithstanding  the  fact  of  the 
extent  to  which  other  governments  exercise  the  power  of 
extraterritoriality  within  its  boundaries,  and  its  freedom  of 
action,  even  as  regards  the  management  of  its  internal  af- 
fairs, is  restrained  by  treaty  conventions,  is  a  completely 
sovereign  State.  In  so  far  as  it  voluntarily  acquiesces  in 
these  arrangements  it,  as  a  State,  exercises  its  supreme 
authority  to  say  that  the  conduct  of  political  affairs  shall 


THE  NATURE  OF  THE  STATE  21 

be  had  in  this  way.  In  so  far  as  it  resents  such  arrange- 
ments but  feels  itself  without  sufficient  power  to  annul  them, 
the  latter  represents  an  impairment  of  its  power  but  not 
its  inherent  authority. 

The  same  is  true  of  Cuba.  Cuba  as  a  State  has  complete 
authority  in  respect  to  its  political  affairs,  foreign  as  well  as 
domestic.  Acting  as  a  State  it  has  determined  that  in  re- 
spect to  certain  features  of  its  foreign  affairs  it  will  con- 
sult with  and  defer  to  the  wishes  of  the  United  States. 

As  W.  W.  Willoughby  expresses  it : 1 

Sovereignty,  as  thus  expressing  the  State's  supreme  will,  is 
necessarily  a  unity  and  indivisible.  That  there  cannot  be  in  the 
same  being  two  wills,  each  supreme,  is  obvious.  But  though  the 
sovereign  will  of  the  State  may  not  be  divided,  it  may  find  expres- 
sion through  several  legislative  mouth-pieces,  and  the  execution 
of  its  commands  may  be  delegated  to  a  variety  of  governmental 
organs.  Theoretically  indeed  the  State  may  go  to  any  extent  in 
the  delegation  of  exercise  of  its  powers  not  only  to  governmental 
organs  of  its  own  creation,  but  even  to  those  of  other  States. 
Thus  a  given  State  may,  in  fact,  retain  under  its  own  immediate 
direction  only  a  most  meager  complement  of  activities  and  yet 
preserve  unimpaired  its  sovereignty;  for  in  such  a  case  the  public 
bodies  or  States  to  which  the  exercise  of  the  powers  has  been 
granted,  act  as  the  agents  of  the  State  in  question,  and  this  State 
still  possesses  the  legal,  if  not  the  actual,  powers  of  again  drawing 
to  itself  the  exercise  of  the  powers  it  has  delegated. 

Thus  mother-countries  may  concede  to  colonies  that  most  com- 
plete autonomy  of  government  and  reserve  to  themselves  a  control 
of  so  slight  and  negative  a  character  as  to  make  its  exercise  a  rare 
occurrence,  yet  so  long  as  such  control  exists  the  sovereignty  of 
the  mother  country  exists,  and  such  colony  is  therefore  to  be  con- 
sidered as  possessing  no  independent  political  powers.  Again  as 
we  shall  later  see,  in  the  so-called  Confederate  State,  the  member 
commonwealths  may  yield  to  the  central  government  the  exercise 
of  their  most  important  powers  and  yet  retain  their  sovereignty, 

1  Op.  dt.,  pp.  5-6. 


7 


22      THE  GOVERNMENT  OF  MODERN  STATES 

and  on  the  other  hand,  a  National  Federal  State  may,  without  de- 
stroying its  sovereignty,  yield  to  particular  territorial  authorities 
an  extent  of  power  sufficient  to  endow  them,  apparently,  with  al- 
most all  the  characteristics  of  independent  bodies  politic. 

Distinction  Between  a  Federation  and  a  Confedera- 
tion: The  Former  a  State;  the  Latter  Not.— One  of 
the  most  important  points  developed  by  the  foregoing  con- 
sideration of  the  nature  and  indivisibility  of  sovereignty 
is  the  distinction  between  what  is  known  as  a  Federation 
or  a  Federal  State,  though  this  latter  term  is,  as  has  been 
pointed  out,  an  improper  one,  and  a  Confederation  or,  as 
the  Germans  express  it,  the  distinction  between  a  Bundes- 
staat  and  a  Staatenbund.  Both  are  made  up  of  a  grouping 
of  large  political  units.  In  both  the  performance  of  the 
functions  of  the  State  is  entrusted  to  two  sets  of  govern- 
mental machinery,  a  general  or  central  government  which 
acts  for  all  the  units  and  a  special  government  acting  for 
each  of  the  units  independently  of  the  others. 

Notwithstanding  this  similarity,  the  two  are,  from  the 
political  standpoint,  fundamentally  different.  The  former 
is  a  single  State,  the  latter  is  composed  of  as  many  separate 
States  as  there  are  units  composing  the  grouping.  This 
difference  arises  wholly  from  the  differences  in  respect  to 
the  location  of  sovereignty  in  the  grouping.  In  the  true 
Federation  or  Bundesstaat  sovereignty  resides  in  the  com- 
bined population  of  all  the  units.  This  population  has, 
purely  as  a  matter  of  practical  expediency,  decided  to  make 
use  of  two  sets  of  governmental  machinery  for  the  perform- 
ance of  its  functions :  a  central  government  to  attend  to  mat- 
ters which  it  is  believed  concern  all,  or  should  receive  single 
generally-binding  determination;  and  special  machinery  for 
each  of  the  great  geographical  divisions  into  which  the 
country,  for  historical  or  other  reasons,  is  divided.  Each  of 


THE  NATURE  OF  THE  STATE  23 

these  governments  is  equally  but  the  instrument  through 
which  the  single  State  acts. 

The  Confederation  or  Staatenbund,  on  the  other  hand,  is 
a  mere  league  of  sovereign  States.  The  fact  that  there  is 
a  central  government  acting  for  all  arises  merely  from  the 
fact  that  the  several  States,  though  independent  sovereign- 
ties, have  agreed  among  themselves  to  make  use  of  a  common 
instrument  for  the  performance  of  certain  of  their  duties 
which,  as  a  matter  of  practical  expediency,  they  believe 
should  receive  a  common  determination.  The  association 
is  thus  a  mere  league.  The  tie  binding  the  several  units 
together  is  in  the  nature  of  an  agreement  which  has  been 
entered  into,  not  by  the  combined  population  of  the  several 
units  acting  as  a  body  politic,  but  by  the  several  units  acting 
as  independent  political  units.  The  distinction  between  the 
two,  it  should  be  noted,  is  thus  in  no  way  the  relative  im- 
portance of  the  functions  that  are  exercised  by  the  central 
government  and  the  governments  of  the  constituent  com- 
monwealths. It  is  solely  one  of  the  sources  of  ultimate 
authority,  of  the  location  of  sovereignty.  As  W.  W.  Wil- 
loughby  puts  it : l 

The  distinction  between  a  National  State  with  a  federal  form  of 
government  and  a  Confederacy  of  sovereign  States  is  not  based 
upon  the  quantum  of  powers,  the  exercise  of  which  is  vested  in  the 
central  government ;  nor  primarily  whether  the  commands  emanat- 
ing from  the  central  legislature  operate  directly  upon  individuals 
or  upon  the  individual  commonwealths;  nor  finally  upon  the  dif- 
ference between  a  central  government  with  enumerated  and  one 
with  unenumerated  powers.  The  one  absolute  and  finally  determin- 
ing criterion  is :  What  authority  has,  in  the  last  instance,  the  legal 
power  of  fixing  its  own  legal  competence,  and,  as  a  result,  that  of 
the  others? 

1  Op.  cit.,  p.  10. 


26      THE  GOVERNMENT  OF  MODERN  STATES 

to  recapitulate  in  one  compact  statement  the  points  that  it 
has  sought  to  bring  out.  Making  such  an  attempt  we  may 
say  that: 

A  State  is  a  politically  organized  community,  or  to  state 
it  in  another  way,  a  community  viewed  as  a  political  entity. 
It  exists  in  virtue  of  the  desire  on  the  part  of  such  com- 
munity that  it  shall  collectively  constitute  a  body  politic. 
Such  desire  means  that  there  shall  come  into  existence  an 
entity  known  as  a  State  which  shall  have  supreme  and  un- 
limited authority  over  them,  whether  viewed  collectively  or 
individually.  This  entity,  the  State,  has  all  the  attributes 
of  legal  personality.  It  possesses  a  supreme  will,  means  for 
formulating  and  expressing  this  will,  and  full  powers  to 
employ  all  force  necessary  to  compel  compliance  with  its 
commands.  As  a  legal  person  it  is  a  unity  which  is  in- 
divisible and  unchangeable.  To  exercise  its  powers  and 
to  discharge  its  functions  it  brings  into  existence  an  organ- 
ization or  a  machinery  of  administration  which,  viewed  as  a 
whole,  is  termed  its  government.  This  government  may 
take  an  almost  limitless  variety  of  forms,  but  such  variety 
in  no  way  affects  or  alters  the  character  of  the  State  which 
itself  remains  invariable. 

From  the  foregoing  it  must  be  apparent  that  when  po- 
litical writers  speak  of  different  kinds  of  States  as  Unitary 
States,  Federal  States,  etc.,  they  are  guilty  of  loose  think- 
ing or  loose  language.  There  is  no  such  thing  as  differ- 
ent kinds  of  States.  The  State  of  Great  Britain,  of  the 
United  States,  of  China,  is  precisely  the  same  thing. 
States  differ  among  themselves,  not  in  respect  to  their 
essential  nature,  but  merely  in  respect  to  the  policies  pur- 
sued by  them  in  making  use  of  their  identical,  inherent  pow- 
ers, and  in  the  character  of  the  organization  employed,  and 
rules  of  procedure  followed,  in  their  exercise. 


THE  NATURE  OF  THE  STATE       27 


Present  Importance  of  the  Question  of  the  Nature  of 
the  State. —  It  might  seem  that  the  foregoing  consideration 
of  the  nature  of  the  State  had  only  a  theoretical  interest 
and  could  well  be  left  to  those  who  are  primarily  inter- 
ested in  speculative  political  philosophy.  This,  however, 
is  not  so.  In  point  of  fact  the  questions  here  involved  are 
ones  of  great  practical  importance.  We  have  already  seen 
that,  in  a  very  real  sense,  the  great  contest  between  the 
North  and  the  South  was  one  over  contending  theories  of 
the  nature  of  the  American  State.  Had  there  been  no  dif- 
ference of  opinion  regarding  this  matter,  it  is  conceivable 
that  that  contest  might  have  been  avoided.  At  the  present 
time  the  questions  here  considered  immediately  arise  wher- 
ever a  new  State  is  brought  into  existence  or  existing  States 
undergo  reorganization.  It  is  impossible  without  keeping 
these  considerations  in  mind  to  act  intelligently  upon  such 
questions  as  the  attitude  that  shall  be  taken  towards  those 
in  control  of  the  direction  of  affairs  in  Russia  at  the  pres- 
ent time,  towards  the  Czecho-Slovaks,  the  Jugo-Slavs  and 
the  Poles  and  their  efforts  to  bring  into  existence  autono- 
mous States  of  their  own.  They  are  present  in  all  questions 
of  the  relations  of  mother  countries  to  their  dominions, 
colonies  and  dependencies,  and  in  the  great  questions,  now 
becoming  ones  of  supreme  importance,  of  imperial  federa- 
tion, of  leagues  of  nations  and  of  the  relation  between 
States  generally.  They,  indeed,  constitute  the  very  kernel 
of  these  problems.  Most  important  of  all,  however,  is  the 
fact  that  the  present  world  war  finds  its  real  cause  in  the 
fundamentally  different  conceptions  held  by  the  English 
peoples  and,  in  large  part,  by  their  Allies,  and  that  held  by 
the  Central  European  powers  in  respect  to  the  true  nature 
of  the  State,  and  what  should  be  its  aims.  No  adequate 
idea  can  be  obtained  of  the  real  issues  of  this  great  struggle 


26      THE  GOVERNMENT  OF  MODERN  STATES 

to  recapitulate  in  one  compact  statement  the  points  that 
has  sought  to  bring  out.     Making  such  an  attempt  we  ma 
say  that: 

A  State  is  a  politically  organized  community,  or  to  stai 
it  in  another  way,  a  community  viewed  as  a  political  entit; 
It  exists  in  virtue  of  the  desire  on  the  part  of  such  con 
munity  that  it  shall  collectively  constitute  a  body  politi 
Such  desire  means  that  there  shall  come  into  existence  a 
entity  known  as  a  State  which  shall  have  supreme  and  ut 
limited  authority  over  them,  whether  viewed  collectively  c 
individually.  This  entity,  the  State,  has  all  the  attribute 
of  legal  personality.  It  possesses  a  supreme  will,  means  fc 
formulating  and  expressing  this  will,  and  full  powers  t 
employ  all  force  necessary  to  compel  compliance  with  ii 
commands.  As  a  legal  person  it  is  a  unity  which  is  ir 
divisible  and  unchangeable.  To  exercise  its  powers  an 
to  discharge  its  functions  it  brings  into  existence  an  orgar 
ization  or  a  machinery  of  administration  which,  viewed  as 
whole,  is  termed  its  government.  This  government  ma 
take  an  almost  limitless  variety  of  forms,  but  such  variet 
in  no  way  affects  or  alters  the  character  of  the  State  whic 
itself  remains  invariable. 

From  the  foregoing  it  must  be  apparent  that  when  pc 
litical  writers  speak  of  different  kinds  of  States  as  Unitar 
States,  Federal  States,  etc.,  they  are  guilty  of  loose  thinl 
ing  or  loose  language.  There  is  no  such  thing  as  diffei 
ent  kinds  of  States.  The  State  of  Great  Britain,  of  th 
United  States,  of  China,  is  precisely  the  same  thin| 
States  differ  among  themselves,  not  in  respect  to  thei 
essential  nature,  but  merely  in  respect  to  the  policies  pui 
sued  by  them  in  making  use  of  their  identical,  inherent  po^\ 
ers,  and  in  the  character  of  the  organization  employed,  an 
rules  of  procedure  followed,  in  their  exercise. 


THE  NATURE  OF  THE  STATE  27 


Present  Importance  of  the  Question  of  the  Nature  of 
the  State. —  It  might  seem  that  the  foregoing  consideration 
of  the  nature  of  the  State  had  only  a  theoretical  interest 
and  could  well  be  left  to  those  who  are  primarily  inter- 
ested in  speculative  political  philosophy.  This,  however, 
is  not  so.  In  point  of  fact  the  questions  here  involved  are 
ones  of  great  practical  importance.  We  have  already  seen 
that,  in  a  very  real  sense,  the  great  contest  between  the 
North  and  the  South  was  one  over  contending  theories  of 
the  nature  of  the  American  State.  Had  there  been  no  dif- 
ference of  opinion  regarding  this  matter,  it  is  conceivable 
that  that  contest  might  have  been  avoided.  At  the  present 
time  the  questions  here  considered  immediately  arise  wher- 
ever a  new  State  is  brought  into  existence  or  existing  States 
undergo  reorganization.  It  is  impossible  without  keeping 
these  considerations  in  mind  to  act  intelligently  upon  such 
questions  as  the  attitude  that  shall  be  taken  towards  those 
in  control  of  the  direction  of  affairs  in  Russia  at  the  pres- 
ent time,  towards  the  Czecho-Slovaks,  the  Jugo-Slavs  and 
the  Poles  and  their  efforts  to  bring  into  existence  autono- 
mous States  of  their  own.  They  are  present  in  all  questions 
of  the  relations  of  mother  countries  to  their  dominions, 
colonies  and  dependencies,  and  in  the  great  questions,  now 
becoming  ones  of  supreme  importance,  of  imperial  federa- 
tion, of  leagues  of  nations  and  of  the  relation  between 
States  generally.  They,  indeed,  constitute  the  very  kernel 
of  these  problems.  Most  important  of  all,  however,  is  the 
fact  that  the  present  world  war  finds  its  real  cause  in  the 
fundamentally  different  conceptions  held  by  the  English 
peoples  and,  in  large  part,  by  their  Allies,  and  that  held  by 
the  Central  European  powers  in  respect  to  the  true  nature 
of  the  State,  and  what  should  be  its  aims.  No  adequate 
idea  can  be  obtained  of  the  real  issues  of  this  great  struggle 


28     THE  GOVERNMENT  OF  MODERN  STATES 

without  a  clear  appreciation  of  this  difference.  Involving 
though  it  has  a  dip  into  political  philosophy  it  has  thus  been 
essential  that  we  should  have  attempted  to  make  this  dif- 
ference clear. 

Comparison  of  the  Anglo-Saxon  and  Teutonic  The- 
ories of  the  State.1 —  The  Anglo-Saxon  theory  of  the  State 
is  an  exceedingly  practical  one.  It  looks  upon  the  State 
,  merely  as  an  agency  that  is  brought  into,  existence  by  a 
people  for  the  promotion  of  their  welfare  as  individuals. 
The  State,  in  a  word,  exists  for  the  people,  not  the  people 
for  the  State.  It  conceives  of  the  State  as  having  no  in- 
terests apart  from  those  of  its  citizens.  The  promotion  of 
individual  welfare,  individual  liberty  and  individual  rights 
constitutes  thus  the  very  foundation  and  justification  of 
the  State.  It  holds  that,  in  general,  the  largest  practicable 
freedom  should  be  left  to  the  individual  in  determining  his 
affairs.  It  sanctions,  however,  the  intervention  of  the 
State  wherever  the  welfare  of  individuals  generally  will 
be  thereby  promoted.  To  be  justified  the  necessity  for 
such  intervention  should,  however,  be  clearly  and  affirma- 
tively established. 

From  the  moral  standpoint  the  State  is  viewed  as  being 
without  morals;  that  is,  non-moral.  Moral  responsibility 
for  the  acts  of  the  State  thus  rests  upon  the  persons  hav- 
ing in  charge  the  conduct  of  the  State's  affairs.  No  dis- 
tinction in  respect  to  moral  obligations  is  thus  made  between 
the  acts  of  officers  of  the  State  as  such  officers  and  as 

1  No  writer  has  done  so  much  as  the  brother  of  the  present  author  in 
making  clear  the  important  bearing  of  the  German  political  philosophy 
upon  the  present  war.  Especially  notable  are  his  two  articles  on  "  The 
Prussian  Theory  of  the  State,"  and  "The  Prussian  Theory  of  Govern- 
ment," which  appeared  in  the  American  Journal  of  International  Law, 
Vol.  XII,  No.  2,  April,  1918.  Large  use  of  these  articles  has  been 
made  in  the  present  work. 


THE  NATURE  OF  THE  STATE       29 

individuals.  The  same  standards  of  honor,  integrity  and 
fair  dealing  should  thus  obtain  in  respect  to  acts  of  the 
State  as  in  respect  to  those  of  individuals.  Though  moral 
responsibility  attaches  to  the  individuals  acting  as  officers 
of  the  State  rather  than  to  the  State  itself,  the  highest 
regard  is  had  for  the  honor  of  the  State  as  representing  the 
collectivity  of  its  citizens,  their  ideals,  achievements  and 
reputation  for  honesty  and  fair  dealing.  Regard  for  the 
State  and  pride  in  its  position  in  the  world  is  thus  of 
the  same  character  as  that  held  by  individuals  in  respect 
to  other  bodies,  such  as  the  family,  the  church,  the  university 
or  other  organization  of  which  they  are  constitutent  mem- 
bers. 

This  conception  of  the  State,  and  of  the  relations  that 
should  exist  between  it  and  its  citizens,  is  one  which  it  is 
held  should  be  of  general  application.  It  recognizes  no 
distinction  between  strong  and  weak  States.  The  same 
standard  of  conduct  should  be  maintained  towards  one  as 
the  other.  It  denies  absolutely  any  justification  for  one 
State  to  impose  its  will  upon  another  except  in  so  far 
as  such  action  is  necessary  to  hold  such  other  State  to  its 
obligations. 

This  conception  of  the  State  is  so  matter  of  fact  and 
logical  that  it  is  difficult  for  the  American  or  Englishman 
to  understand  how  a  different  one  can  be  held  by  any  other 
people.  Nothing,  however,  is  more  certain  than  that  the 
conception  of  the  State,  its  function,  and  its  relations  to 
its  citizens,  held  by  the  German  people,  is  different.  To  the 
Germans,  and  particularly  the  Prussians,  the  State  is 
deemed  to  be  something  much  more  than  a  mere  agent  of 
the  people  for  the  protection  and  promotion  of  their  com- 
mon or  collective  interests.  It  is  looked  upon  as  an  entity 
having  interests,  ambitions  and  a  will  of  its  own  quite  dis- 


30      THE  GOVERNMENT  OF  MODERN  STATES 

tinct  from  those  of  its  citizens  collectively  considered. 
These  interests  moreover,  it  is  held,  are  superior  to  those 
of  its  citizens.  To  this  entity  the  citizens  owe  implicit 
obedience.  Whenever  the  interests  of  the  State  and  its 
citizens  come  into  conflict,  those  of  the  latter  should  give 
way.  Being  superhuman,  as  it  were,  it  is  neither  itself 
bound,  nor  are  those  in  charge  of  the  conduct  of  its  affairs 
bound,  by  the  principles  of  morality  governing  in  the  case 
of  human  beings.  Furthermore,  the  State  is  not  only  jus- 
tified, but  is  under  the  obligation,  as  it  were,  to  use  its  utmost 
powers  to  advance  its  particular  interests  no  matter  how 
much  in  so  doing  the  interests  of  other  States  and  even 
those  of  its  own  citizens,  individually  viewed,  may  suffer. 
In  putting  forth  these  efforts  it  knows  no  law  of  morality 
and  no  restraint  but  that  of  expediency. 

"  In  juristic  philosophy,"  writes  the  author's  brother,  "  it  has 
been  found  convenient  in  all  countries,  in  order  to  give  formal  and 
logical  consistency  to  their  systems  of  public  law,  to  envisage  or 
picture  the  State  as  a  political  person  or  corporation  possessing 
and  uttering  a  legally  supreme  will,  and  thus  in  a  formal  and 
purely  juristic  sense,  as  the  ultimate  source  of  all  commands  that 
may  in  technical  structure  be  termed  laws.  But  this  conception, 
which  is  nothing  more  than  a  convenience  of  thought,  and  which 
serves  only  as  a  peg  upon  which  to  hang  other  juristic  concepts,  or 
as  a  starting  point  from  which  to  attempt  a  logical  arrangement  of 
public  law  principles,  is  an  idea  wholly  different  from  the  German 
doctrine  which  postulates  the  real,  albeit  mystical  and  insubstan- 
tial, existence  of  a  State-Being  to  the  commands  of  which,  as  a 
moral  proposition,  implicit  obedience  is  due,  and  with  ends  of  its 
own  for  the  realization  of  which  any  and  every  sacrifice  of  individ- 
ual well  being  might  rightfully  be  required."  x 

This  conception  of  the  State  is  one  held  not  merely  by  the 


.  W.  Willoughby:  "The  Prussian  Theory  of  the  State."    Amer- 
ican Journal  of  International  Law,  Vol.  XII,  No.  2,  April,  1918,  p.  253. 


THE  NATURE  OF  THE  STATE  31 

relatively  few  ambitious  statesmen  holding  the  reins  of 
power  in  Germany.  It  permeates  all  Germany  philosophy. 
It  has  been  taught  in  the  schools  and  universities  until  it 
has  become  an  essential  part  of  the  unconscious  political 
beliefs  of  the  people  as  a  mass.  Scores  of  quotations  from 
German  writers  might  be  cited  in  support  of  it.  Space  will 
however  permit  of  but  one  such,  that  from  a  work  written 
since  the  outbreak  of  the  present  war  by  the  professor  of 
history  at  the  University  of  Berlin.  After  dwelling  upon 
the  essentially  different  political  conceptions  of  the  English 
and  Americans  and  the  Germans,  he  says : 1 

The  State  is  of  much  higher  importance  than  any  of  these  indi- 
vidualistic groups,  and  essentially  is  of  infinite  more  value  than 
the  sum  of  all  the  individuals  within  its  jurisdiction.  For  it  has  a 
life  apart;  its  mission  is  unending,  and,  in  theory  at  least,  unless  it 
is  wrecked  by  a  force  from  without,  its  existence  is  endless,  en- 
compassing, as  it  does,  all  the  generations  yet  to  come,  and  weld- 
ing them  into  a  great  unit  —  the  mighty  life  of  a  nation  acting  its 
part  in  the  history  of  the  world.  This  conception  of  the  State 
which  is  as  much  a  part  of  our  life  as  is  the  blood  in  our  veins,  is 
nowhere  to  be  found  in  the  English  constitution,  and  is  quite  for- 
eign to  English  thought  and  to  that  of  America  as  well. 

Combined  with  this  idea  of  the  State,  as  a  political  con- 
ception, is  that  of  the  belief  generally  held  by  the  German 
people  of  the  special  superiority  of  their  civilization  or 
"  Kultur  "  over  that  of  other  peoples'  and  of  the  mission  of 
the  German  State  to  make  this  civilization  prevail.  With 
such  a  combination  of  conceptions  it  was  inevitable  that  the 
policy  of  the  German  State  should  be  one  of  aggression; 
that  it  should  lose  no  opportunity  to  advance  its  authority. 

1<<  England:  Its  Political  Organization  and  Development  and  the 
War  Against  Germany,"  by  Edward  Meyer,  Ph.D.,  LL.D.,  Professor 
of  History  at  the  University  of  Berlin.  Translated  by  Helene  S. 
White,  Boston,  Ritter  &  Co.,  1916,  pp.  30-31. 


32      THE  GOVERNMENT  OF  MODERN  STATES 

In  the  pursuance  of  this  policy  it,  as  has  been  pointed  out, 
felt  under  no  restraint,  moral  or  otherwise,  except  that  of 
expediency.  Believing  that  the  time  was  propitious  it  took 
the  steps  which  led  to  the  present  world  conflict. 


PART  II 
TYPES  OF  GOVERNMENT 


CHAPTER  III 

THE  THREE   TYPES   OF   GOVERNMENT   ACCORDING  TO  THE 

LOCATION    OF   SOVEREIGNTY:    AUTOCRATIC, 

OLIGARCHIC    AND    POPULAR 

In  the  preceding  chapter  we  have  sought  to  do  three 
things:  to  distinguish  clearly  between  the  State  and  its 
government;  to  make  known  the  nature  of  the  State  and 
the  different  conceptions  that  are  held  regarding  its  mis- 
sion ;  and  to  state  the  important  consequences  that  may,  and 
have,  resulted  from  these  different  conceptions.  This  con- 
sideration, which  has  unavoidably  been  of  a  somewhat  ab- 
stract character,  was  essential  as  a  starting  point,  if  one, 
in  the  study  of  government,  is  to  gain  an  insight  into  funda- 
mental political  problems,  as  well  as  the  more  technical 
questions  involved  in  the  organization  and  operation  of  the 
machinery  through  which  a  State  formulates,  expresses  and 
exercises  its  will.  With  this  general  idea  of  the  nature  of 
the  State,  we  are  now  in  a  position  to  enter  upon  a  con- 
sideration of  this  latter  class  of  questions. 

Unity  of  the  Problem  of  Government. —  In  approach- 
ing this  branch  of  our  study  the  first  point  to  be  grasped 
is  that  the  problem  of  government  as  a  problem  is  identical, 
or  practically  so,  for  all  States.  The  only  difference  that 
exists  between  States,  governmentally  considered,  is  in  re- 
spect to  the  means  that  have  been  employed  by  them  in 
meeting  this  problem.  Manifestly,  under  this  condition,  it 
is  desirable  that  the  problem  of  government  should,  if  pos- 
sible, be  clearly  stated  before  the  attempt  is  made  to  de- 

35 


36     THE  GOVERNMENT  OF  MODERN  STATES 

scribe  and  contrast  the  means  employed  by  States  in 
meeting  this  problem.  Unless  this  is  done  it  is  difficult, 
if  not  impossible,  for  the  student  to  grasp  the  significance 
of  the  different  policies  and  lines  of  action  that  have  been 
adopted  by  States  in  organizing  and  operating  their  govern- 
mental machinery.  The  present  chapter  will,  therefore,  be 
devoted  to  the  attempt  to  state  and  analyze  the  problem  of 
government  as  it  confronts  all  States.  This  analysis,  in 
addition  to  setting  forth  the  terms  of  the  problem,  will 
render  the  further  service  of  making  known  and  classifying 
the  several  distinct  types  of  government  that  have  been 
created  by  the  States  of  the  world,  one  of  the  most  important 
matters  in  the  whole  study  of  government. 

The  Location  of  Sovereignty. —  Sovereignty,  that  is, 
the  quality  of  supreme,  unlimited,  indivisible  authority,  con- 
stitutes, as  we  have  seen,  the  prime  or  most  important  attri- 
bute of  the  State.  Its  conception  is  the  starting  point  of  all 
political  science.  The  whole  complex  problem  of  govern- 
ment and  administration,  from  one  point  of  view,  may  be 
resolved  into  the  single  problem  of  determining  in  whose 
hands  shall  be  vested  the  exercise  of  this  authority,  to  what 
extent  shall  actual  use  be  made  of  it,  what  shall  be  the 
instrumentalities  or  organs  employed  in  its  use,  and  what 
shall  be  the  rules  and  procedure  that  shall  be  followed  by 
such  organs  in  performing  their  functions. 

Of  these  several  questions  the  first  —  in  whose  hands 
shall  be  vested  the  exercise  of  this  authority  —  is  much  the 
most  important,  certainly  the  one  to  which  an  answer  must 
be  given  before  any  other  step  can  be  taken  by  a  community 
desiring  to  organize  itself  as  a  body  politic  and  to  establish 
a  government  through  which  political  authority  will  be 
exercised.  No  political  system  can  be  understood  except 
as  its  study  is  approached  from  this  standpoint.  Upon  the 


THE  THREE  TYPES  OF  GOVERNMENT         37 


nature  of  the  action  had  in  reference  to  this  point  depends 
the  whole  character  and  legal  basis  of  the  government  re- 
sulting, the  authority  for  every  governmental  act,  the  man- 
ner in  which  this  authority  is  determined  in  the  first  instance, 
and  how  it  may  be  subsequently  enlarged,  curtailed  and  con- 
trolled. 

Three  Types  of  Government  According  to  the  Loca- 
tion of  Sovereignty:  Autocracy,  Oligarchy  and  Popular 
Government. —  An  examination  of  the  several  governments 
of  the  world,  past  and  present,  shows  that  they  may  be  made 
to  fall  into  one  or  the  other  of  three  distinct  classes  ac- 
cording as  one  or  another  of  three  distinct  principles  in  re- 
spect to  the  location  of  sovereign  authority  has  been  acted 
upon.  These  principles  are:  (i)  that  the  source  of  all 
political  authority,  that  is,  sovereignty,  is  to  be  found  in  the 
ruler  or  head  of  the  State;  (2)  that  it  resides  in  the  hands 
of  a  special  ruling  class;  and  (3)  that  it  is  possessed  by 
the  general  body  of  citizens.  According  as  one  or  the 
other  of  these  three  theories  or  beliefs  has  been  acted  upon 
there  have  resulted  three  distinct  types  of  government  to 
which  may  be  given  the  designations  Autocratic,  Oli- 
garchic and  Popular.1 

The  Autocratic  Type  of  Government. —  The  autocratic 
type  of  government,  as  indicated,  is  that  class  of  govern- 
ments which  rests  upon  the  principle  that  the  source  of  all 
political  authority  is  to  be  found  in  a  supreme  ruler.  Un- 
der this  theory  all  the  organs  and  officers  of  government  are 
but  the  agents  of  this  supreme  ruler  for  the  purpose  of 
carrying  out  his  will.  All  acts  of  government  are  his  acts 
and  derive  their  validity  from  his  sanction.  All  laws  are 

1We  have  preferred  the  term  Autocratic  to  that  more  usually  em- 
ployed, Monarchical,  to  designate  governments  of  the  first  class,  since, 
as  will  shortly  appear,  it  is  quite  possible  for  a  Monarchy  to  belong  to 
the  Popular  and  not  the  Autocratic  type. 


38      THE  GOVERNMENT  OF  MODERN  STATES 

but  his  commands,  though  they  may  have  been  formulated 
and  promulgated  by  one  of  his  agents.  As  the  possessor 
of  sovereignty  his  authority  is  supreme,  unlimited  and  self- 
determined,  both  as  regards  the  extent  to,  and  manner  in, 
which  it  shall  in  fact  be  exercised. 

This  type  of  government  is  the  one  which  finds  its  chief 
illustration  in  the  absolute  empires  of  the  East.  In  the 
oriental  despotisms  of  the  past  we  see  this  theory,  not  only 
.firmly  established  but  acquiesced  in  by  the  people  as  an 
immutable  political  principle.  The  same  is  scarcely  less 
true  in  respect  to  the  kindoms  of  Europe  as  they  existed 
prior  to  the  great  revolution  in  political  thought  that  char- 
acterized the  Seventeenth,  Eighteenth  and  Nineteenth  Cen- 
turies. It  found  its  expression  in  the  assertion  by  the 
Stuart  Kings  of  England  of  their  divine  right  to  rule  and 
in  the  proud  boast  of  Louis  Fourteenth  of  France  that 
"  L'etat,  c'est  moi." 

Few,  if  any,  more  fundamental  changes  in  the  history  of 
mankind  have  occurred  than  the  change  of  thought  which 
took  place  in  these  centuries  in  respect  to  this  question  of 
the  nature  and  location  of  sovereignty.  Just  as  our  civil 
war  was  fought  over,  or  at  least  intimately  involved,  con- 
tending principles  in  respect  to  the  location  of  sovereignty, 
so  the  great  contests  of  this  period,  represented  by  the 
establishment  of  the  Cromwellian  Commonwealth,  the 
Restoration,  and  the  so-called  Glorious  Revolution  of  1688, 
which  brought  William  of  Orange  to  the  English  throne, 
and  the  French  Revolution,  represent,  in  their  fundamental 
aspects,  a  contest  of  opposing  principles  in  respect  to  where 
the  sovereignty  of  the  State  should  be  deemed  to  reside. 
No  greater  mistake  could  be  made  than  to  look  upon  this 
question  of  the  location  of  sovereignty  as  one  of  merely 
theoretical  or  speculative  interest.  It  furnishes  one  of  the 


THE  THREE  TYPES  OF  GOVERNMENT        39 

important  keys  by  which  historical  events  are  to  be  inter- 
preted. 

More  important  still  is  the  fact  that  these  contending 
principles  are  still  playing  a  vital  part  in  determining  the 
character  of  present-day  governments.  The  principle  of 
popular  sovereignty  has  by  no  means  won  the  battle  all  along 
the  line.  In  both  the  East  and  the  West  are  to  be  found  at 
the  present  day  States,  which  are  among  the  most  enlight- 
ened and  progressive  in  the  world,  having  governments  rest- 
ing squarely  upon  this  principle.  In  the  East  the  leading 
example  of  a  government  of  this  character  is  that  possessed 
by  Japan.  In  1889  Japan  decided  to  abolish  her  old  system 
of  government  and  to  establish  in  its  place  one  corresponding 
to  modern  ideas  as  represented  by  existing  governments  of 
Europe  and  America.  To  this  end  she  made  a  thorough 
study  of  such  governments,  sending  a  commission  headed  by 
Baron  Ito  for  this  purpose  to  study  these  governments  on 
the  spot.  On  the  basis  of  this  study  and  the  report  of  this 
commission  she  adopted  her  present  constitution.  In  fram- 
ing this  constitution  the  first  question  that  she  had  to  answer 
was  in  respect  to  this  matter  as  to  where  supreme  political 
power  or  sovereignty  should  be  located.  After  careful  con- 
sideration of  the  contending  principles  she  made  deliberate 
choice  of  the  autocratic  type;  and  that  there  might  be  no 
question  regarding  it  she  recorded  her  choice  in  unequivocal 
terms  in  her  constitution,  the  preamble  of  which  reads: 

The  rights  of  sovereignty  of  the  State,  we  (the  Emperor)  have 
inherited  from  our  ancestors  and  we  shall  bequeath  them  to  our 
descendants.  .  .  .  When  in  the  future  it  may  become,  necessary  to 
amend  any  of  the  provisions  of  the  present  constitution,  we,  or  our 
successors,  shall  assume  the  initiative  right,  and  submit  a  project 
for  the  same  to  the  Imperial  Diet.  The  Imperial  Diet  shall  pass 
its  vote  upon  it,  according  to  the  conditions  imposed  by  the  present 


40     THE  GOVERNMENT  OF  MODERN  STATES 

constitution,  and  in  no  otherwise  shall  our  descendants  or  our  sub- 
jects be  permitted  to  attempt  any  alteration  thereof. 

Article  I  of  the  Constitution  itself  reads: 

The  Empire  of  Japan  shall  be  reigned  over  and  governed  by  a 
line  of  Emperors  unbroken  for  ages  eternal. 

Baron  Ito,  in  his  "  Commentaries  on  the  Constitution  of  the 
Empire  of  Japan,"  explains  the  meaning  of  this  as  follows : 

By  "  reigned  over  and  governed  "  it  is  meant  that  the  Emperor 
on  his  throne  combines  in  himself  the  sovereignty  of  the  State  and 
the  government  of  the  country  and  of  his  subjects. 

In  the  West  the  two  most  important  examples  of  govern- 
ments resting  upon  the  autocratic  basis  are  those  of  Russia 
before  the  Revolution  of  1917  and  Prussia  at  the  present 
time.  The  "  Fundamental  Laws  of  the  Russian  Empire," 
promulgated  May  6,  1906,  though  issued  in  response  to  a 
public  demand  for  a  more  liberal  form  of  government,  were 
no  less  emphatic  in  stating  this  principle  of  autocracy  than 
the  constitution  of  Japan.  Article  IV  of  that  document 
thus  reads : 

The  Emperor  of  all  the  Russias  wields  the  supreme  autocratic 
power.  To  obey  his  authority,  not  only  through  fear  but  for  the 
sake  of  conscience,  is  ordered  by  God  himself. 

This  principle  is  not  set  forth  in  the  constitution  of 
Prussia  in  the  way  that  it  is  enunciated  in  the  fundamental 
laws  of  Russia  and  Japan,  but  that  this  is  the  principle  upon 
which  the  Prussian  political  system  rests  is  no  less  strongly 
held.  This  is  due  in  great  part  to  the  circumstances  under 
which  Prussia  obtained  its  constitution.  Historically  all  the 
powers  of  the  State  rested  in  the  king's  hands.  He,  as  a 
matter  of  state  policy,  promulgated  on  his  own  authority  a 


THE  THREE  TYPES  OF  GOVERNMENT        41 


constitution.  It  was  his  act  and  his  act  alone.  The  consti- 
tution was  "  octroyed,"  as  the  expression  is,  not  adopted  by 
the  people.  The  king  thus  is  not  only  the  source  of  all 
authority  now  possessed  by  the  various  organs  of  the  state, 
but  is  the  possessor  of  all  the  powers,  i.  e.,  the  reserved 
powers,  not  expressly  delegated  to  other  authorities. 

The  Doctrine  of  the  Divine  Right  of  Kings. —  If  one 
asks  how  it  is  that,  not  merely  the  ruler  claimed  to  be  the 
source  of  all  authority,  but  this  claim  was  acquiesced  in  by 
the  people  ruled,  the  answer  must  be  found  in  the  belief,  long 
unquestioningly  held,  that  the  ruler  got  his  authority  direct 
from  God,  that  he  was  God's  vice-regent  on  earth,  that  he 
ruled  by  divine  right.  In  China  we  see  this  belief  expressed 
in  all  her  literature  during  the  thousands  of  years  that  she 
was  a  monarchy  in  the  constantly  reiterated  statements  that 
the  Emperor  was  the  "-Son  of  Heaven,"  that  he  ruled  in 
virtue  of  the  mandate  that  he  had  received  from  Heaven. 
The  fact  that  on  various  occasions  a  dynasty  was  forcibly 
overthrown  and  its  place  taken  by  another  did  not  shake  this 
belief.  In  all  such  cases  the  position  taken  was;  that  the 
deposed  emperor  had  forfeited  his  right  to  rule  by  his  weak- 
ness or  misconduct;  that  Heaven  had  withdrawn  its  man- 
date and  had  conferred  authority  to  rule  upon  his  successful 
rival.  No  further  proof  of  this  was  required  than  the  fact 
that  this  rival  had  prevailed.  That  in  itself  was  demonstra- 
tion that  Heaven  had  transferred  its  mandate  to  him.  This 
reasoning  is  no  more  sophistical  than  that  underlying  the 
faith  in  the  justice  of  the  ordeal  of  battle  which  for  centuries 
after  the  Norman  Conquest  prevailed  in  England.  The 
whole  basis  for  this  faith  was  that  God  determined  the 
right  by  permitting  he  who  had  the  right  on  his  side  to 
prevail. 

In  scarcely  less  degree  did  this  belief  in  the  divine  right  of 


42      THE  GOVERNMENT  OF  MODERN  STATES 

kings  to  rule  prevail  for  centuries  in  Europe  and  England. 
It  was  in  matters  temporal  strictly  analogous  to  the  belief 
in  the  supreme  authority  of  the  Pope  as  the  direct  represent- 
ative of  God  on  earth  in  respect  to  matters  spiritual.  As 
James  Bryce  has  excellently  stated  it :  * 

From  the  Fifth  to  the  Sixteenth  Century  whoever  asked  what 
was  the  source  of  legal  sovereignty  and  what  the  moral  claim  of 
the  sovereign  to  obedience  of  subjects  would  have  been  answered 
that  God  had  appointed  certain  powers  to  govern  the  world  and 
that  it  would  be  a  sin  to  resist  his  ordinance. 

From  the  Eleventh  Century  onwards  it  was  admitted  in  Western 
Christendom,  though  less  cordially  in  France,  Spain  or  England 
than  in  Italy  and  Germany,  that  there  were  two  legal  sovereigns 
and,  according  to  the  view  more  generally  held,  each  was  de  jure 
absolute,  the  Pope  in  spiritual,  the  Emperor  in  temporal  matters. 
Both  Pope  and  Emperor  were  above  all  positive  secular  law,  but 
subject  to  the  law  of  nature  and  the  law  of  God,  these  being  virtu- 
ally the  same. 

That  this  belief  in  the  divine  right  to  rule  has  not  entirely 
disappeared  can  be  seen  in  the  constant  reference  to  the 
Deity  made  by  the  present  German  Emperor  in  his  state 
papers  or  public  addresses.  This  frequent  invocation,  of 
the  Deity  by  him  and  assertion  that  he  was  carrying  out  rhe 
will  of  God  has  been  a  matter  difficult  for  the  American 
public  to  understand.  Its  explanation  must  be  found  in  the 
persistence  of  the  medieval  doctrine  which  we  have  been 
considering.  It  is  not  so  much  a  manifestation  of  deep 
piety  as  the  assertion  of  a  doctrine  of  political  sovereignty. 

Two  Classes  of  Autocracies :  Absolute  and  Limited. — 
In  the  foregoing  we  have  sought  to  get  clearly  before  the 
reader,  not  only  the  theory  of  autocracy,  but  the  extent  to 
which  this  theory  has  in  fact  dominated  political  thought  and 

1 "  Studies  in  History  and  Jurisprudence." 


THE  THREE  TYPES  OF  GOVERNMENT        43 

action.  That  this  theory  has  continued  to  prevail  in  the 
case  of  many  nations  is  due  to  the  fact  that,  though  all  polit- 
ical authority  may  be  deemed  to  flow  from  the  ruler,  the 
belief  and  practice  has  constantly  gained  ground  that  this 
authority  should  not  be  exercised  in  an  arbitrary  manner, 
but  in  conformity  to  general  provisions  of  law  having  for 
their  purpose  to  insure  that  due  consideration  will  be  had  of 
the  rights  and  interests  of  the  individual  citizens.  Autocra- 
cies, as  will  hereafter  be  shown,  may  thus  be  divided  into 
two  classes  according  as  one  or  the  other  of  two  conceptions 
obtain  in  respect  to  the  manner  in  which  the  ruler  should 
exercise  his  supreme  powers.  The  first  of  these  is  that  the 
ruler  not  only  is  the  possessor  of  supreme  power,  but  is  free 
•;o  exercise  it  in  such  manner  as  he  may  see  fit.  The  second 
is  that,  though  possessing  this  authority  in  no  less  degree, 
the  ruler  should  exercise  it  through  regularly  constituted 
organs  and  in  conformity  with  general  provisions  of  law. 
The  government  resulting  from  action  on  the  first  principle 
is  a  pure  Absolutism,  a  Despotism,  and  its  prime  character- 
istic is  that  the  ruler  can  act  arbitrarily.  The  government 
resulting  from  the  second  is  a  Government  of  Law  and  may, 
in  its  practical  operations,  be  of  a  scarcely  less  liberal  type 
and  permit  of  almost  as  wide  a  participation  on  the  part  of 
the  public  as  that  presented  by  a  government  resting  upon 
the  doctrine  of  popular  sovereignty. 

From  the  structural  standpoint  and  that  of  its  legal  basis, 
it  is  immaterial  whether  this  change  from  an  Absolutism  to 
the  modern  type  of  Autocracy  has  come  about  by  voluntary 
act  of  the  autocrat  or  in  response  to  pressure  from  his  sub- 
jects which  he  found  it  unwise  to  resist.  Actually  history- 
shows  that  in  most  cases  the  change  has  been  forced  upon 
the  autocrat  either  by  revolution  or  threat  of  revolution. 
The  summoning'  of  the  Duma  by  the  Czar  of  Russia,  fol- 


44      THE  GOVERNMENT  OF  MODERN  STATES 

lowing  the  war  with  Japan,  is  the  best  modern  example  of 
how  an  autocratic  ruler,  without  losing  his  legally  auto- 
cratic powers,  has  been  forced  by  pressure  on  the  part  of  his 
subjects  to  bring  into  existence  an  organ  through  which  his 
power  is  to  be  exercised  to  the  end  that  his  decisions  and 
acts  may  be  influenced  to  some  degree  at  least  by  popular 
opinion.  The  summoning  of  this  body  in  no  way  affected 
the  location  of  sovereignty.  It  merely  set  up  an  organ 
through  which  sovereign  power  should  be  in  part  exercised. 
A  study  of  existing  Autocracies,  such  as  those  of  Japan, 
Prussia  and  other  German  states,  will  thus  reveal  the  fact 
that  these  governments  are  equipped  with  popular  assemblies 
and  other  organs,  that  they  are  in  possession  of  constitutions 
and  that  their  operations  are  conducted  in  conformity  with 
law  in  the  same  way  as  governments  resting  upon  the  prin- 
ciple of  popular  sovereignty.  This,  however,  should  not 
blind  us  to  their  fundamental  difference  from  the  legal 
standpoint.  This  distinction,  moreover,  is  not  a  mere  legal 
technicality  having  a  theoretical  value  only.  It  is  one  of 
prime  practical  significance.  In  an  Autocracy  the  ruler,  as 
has  been  pointed  out,  is  the  source  of  all  political  and  legal 
authority.  It  follows  from  this  that  all  other  organs  of 
government  have  no  inherent  powers.  They  have  only  such 
powers  as  have  been  expressly  granted  to  them.  The 
scope  of  their  authority  is  thus  strictly  limited  by  the  terms 
of  the  order  by  which  they  have  been  brought  into  existence 
and  their  powers  and  functions  defined.  All  such  organs 
and  authorities  are  thus  organs  of  enumerated,  delegated 
and  restricted  powers.  Through  their  own  action  they  have 
no  power  to  add  to,  subtract  from,  or  modify  their  authority. 
The  ruler,  on  the  other  hand,  has  a  legal  status  exactly  the 
reverse  of  this.  His  powers  are  inherent,  unenumerated 
and  unlimited.  To  justify  any  act  he  does  not  have  to  show 


THE  THREE  TYPES  OF  GOVERNMENT        45 

any  grant  of  authority.  From  this  flows  the  important 
consequence  that  all  powers,  the  exercise  of  which  he  has 
not  entrusted  to  some  other  organ,  remain  in  his  own  hands. 
It  is  moreover  a  question  whether  he  can  finally  divest  him- 
self of  any  of  his  powers  as  long  as  this  theory  of  the  organ- 
ization of  the  State  is  maintained.  In  all  cases  where  he 
has  granted  a  constitution  to  his  country,  the  matter  thus 
remains  an  open  one  whether  the  continued  operation  of  that 
constitution  does  not  rest  upon  his  will  alone.  What  he  has 
granted  he  can  modify  or  take  away. 

This  fundamental  distinction  between  the  two  types  of 
government  and  the  consequences  flowing  from  it  has  been 
excellently  stated  by  the  writer's  brother  in  a  contribution 
made  by  him  to  a  recent  symposium.1  Writing  under  the 
title  of  "  The  Relation  of  the  Individual  to  the  State  "  he 
says: 

As  opposed  to  this  fundamental  constitutional  doctrine  (of  popu- 
lar sovereignty)  the  monarchical  (i.  e.  autocratic)  theory  of  con- 
tinental Europe  is  that  the  right  of  political  rulership  comes  from 
above.  It  inheres  in,  and  is  an  original  right  of  the  monarch,  and, 
as  such,  in  its  exercise  is  ultimately  subject  only  to  the  will  of 
him  who  possesses  it.  It  is  true  that  Austria-Hungary,  and  the 
German  Empire  and  its  individual  states,  including  Prussia,  operate 
under  formal  written  constitutions,  but  these  instruments  of  gov- 
ernment are  regarded  as  themselves  the  creations  of  the  royal  or 
imperial  will.  It  thus  results  that,  not  only  may  the  constitutions 
be  changed  by  an  exercise  of  the  royal  or  imperial  will,  but  that  the 
sovereign  is  regarded,  not  as  the  exerciser  of  enumerated  delegated 
powers,  but  as  the  possessor  of  sovereign  authority  free  from  legal 
restraint  in  all  matters  in  regard  to  which  he  has  not  seen  fit  to  fix 
self-set  limitations.  This  is  the  constitutional  theory,  whatever 
may  have  been  the  popular  pressure  which,  historically  speaking, 
may  have  led  to  the  promulgation  of  the  written  constitutions. 

1 "  Problems  of  Readjustment  after  the  War."    D.  Appleton  &  Co., 
New  York,  1915,  pp.  100-112. 


46     THE  GOVERNMENT  OF  MODERN  STATES 

It  further  follows  from  this  constitutional  conception  that  the 
part  played  by  the  elected  representatives  of  the  people  in  the  en- 
actment of  laws  and  in  the  adoption  of  public  policies  is  quite  dif- 
ferent from  that  which  is  played  in  countries  where  constitutional 
systems  are  founded  upon  a  democratic  basis.  According  to  the 
doctrine  held  by  German  jurists  the  people,  through  their  repre- 
sentatives, participate,  not  in  the  creation  of  law,  but  in  the  deter- 
mination of  the  contents  of  a  proposition  which  is  to  be  submitted 
to  the  sovereign  for  the  exercise  of  his  supreme  legislative  will. 
Essentially  speaking  then,  the  situation  is  this:  The  ruler,  as  a 
matter  of  grace  and  expediency,  is  pleased  to  learn  the  wishes  of 
his  people  regarding  a  proposition  of  law  or  the  adoption  of  a  pub- 
lic policy,  and  to  obtain  such  information  regarding  its  wisdom  as  a 
representative  chamber  is  able  to  provide;  and  these  wishes  and 
this  information  he  necessarily  takes  into  consideration  in  deter- 
mining the  exercise  of  his  own  sovereign  will.  But  never  does  he 
regard  these  factors  as  controlling  in  any  affirmative  sense.  So 
long  as  the  constitution  which  he  has  promulgated  exists,  he  agrees 
not  to  act  contrary  to  its  provisions  with  regard  to  the  matters 
which  are  therein  specified.  But  never  for  a  moment  does  the 
German  ruler  admit  himself  to  be  under  a  legal,  or  even  a  moral, 
or  political,  obligation  to  give  effect  to  any  expression  of  the  will 
of  the  representatives  of  the  people  of  which  he  disapproves. 

The  Oligarchic  Type  of  Government. —  The  second 
type  of  government,  as  determined  by  the  location  of 
sovereignty,  is  the  Oligarchic.  This  type  stands  midway 
between  the  other  two.  In  it  sovereignty  is  held  to  reside, 
neither  in  the  general  body  of  the  people,  nor  in  a  single 
divinely  determined  ruler,  but  in  a  certain  privileged  class. 
Mention  is  made  of  this  type  of  government  chiefly  in  order 
that  our  classification  of  governments  according  to  the 
principle  of  location  of  sovereignty  may  be  complete.  In 
the  past  there  have  been  comparatively  few  governments 
of  this  character,  and  none  of  any  importance  is  to  be  found 
at  the  present  time.  Probably  the  government  of  Venice 
during  the  period  of  its  existence  as  an  independent  power 


THE  THREE  TYPES  OF  GOVERNMENT        47 

furnishes  the  leading  example  of  a  government  of  this  type. 
The  government  of  England,  after  the  overthrow  of  the 
autocratic  principle,  which  may  be  said  to  have  been  defi- 
nitely accomplished  by  the  Revolution  of  1688,  and  before 
the  movement  in  the  early  part  of  the  nineteenth  century  for 
the  extension  of  the  franchise  to  the  mass  of  the  people 
gained  headway,  approximated  this  type  in  practice,  if  not 
in  theory.  In  most  other  cases  where  this  type  has  existed 
the  ruling  class  was  closely  identified  with  the  priestly  class 
and  appeal  to  divine  sanction  for  its  justification  was  made 
in  much  the  same  way  as  the  doctrine  of  the  divine  right 
of  kings  was  evoked  by  Autocracies. 

It  is  hardly  necessary  to  point  out  that  this  form  of  gov- 
ernment should  be  clearly  distinguished  from  those  cases 
where  a  small  class  has,  by  its  superior  strength  or  skill, 
secured  control  over  the  machinery  of  government.  His- 
tory affords  many  examples  where  this  has  taken  place. 

The  Popular  Type  of  Government. —  The  third  type  of 
government  is  the  one  in  which  the  belief  is  held  that  sov- 
ereignty resides,  neither  in  a  single  all-powerful  ruler,  nor  in 
a  special  ruling  class,  but  resides  in  the  whole  body  of  the 
people.  It  would  be  difficult  to  single  out  a  more  momen- 
tous event  in  the  history  of  the  evolution  of  governments 
than  the  change  in  both  political  thought  and  practice  which 
has  resulted  from  the  rise  and  development  of  this  principle. 
It  constitutes  the  key  by  which  is  to  be  interpreted  many  of 
the  most  important  events  of  modern  history.  It  dominates 
and  colors  all  political  thought  at  the  present  time. 

Historical  Development  of  the  Doctrine  of  Popular 
Sovereignty. —  The  origin  of  this  doctrine  is  to  be  found 
in  the  early  Greek  and  Roman  Republics.  In  a  very  true 
sense  their  governments  may  be  said  to  have  rested  on  this 


48      THE  GOVERNMENT  OF  MODERN  STATES 

principle.  Even  after  the  establishment  of  the  Empire  of 
Rome  republican  forms  were  long  preserved  and  the  fiction 
was  kept  up  that  the  Emperors  were  elected  by  and  repre- 
sented the  people.  In  time,  however,  both  the  form  and  the 
fiction  disappeared.  In  place  of  the  western  doctrine  of 
popular  sovereignty  arose  the  oriental  conception  of  the 
autocratic  monarch  ruling  by  divine  right.  This  conception 
ran  parallel  with  that  of  the  supremacy  of  the  Pope  in  mat- 
ters spiritual.  The  two  in  close  alliance^ represented  the  doc- 
trine of  authority  as  opposed  to  that  of  reason,  that  in  all 
matters  the  seat  of  authority  was  to  be  found  in  the  Divine 
Being  who  exercised  this  authority  through  his  divinely  ap- 
pointed representatives  on  earth.  One  cannot  understand 
the  history  of  events  in  the  Middle  Ages  without  having 
this  conception  clearly  in  mind.  In  the  claim  of  the  Popes 
that  in  them  resided  sovereignty  in  respect  to  temporal  as 
well  as  spiritual  matters,  and  in  their  attempt  to  make  good 
this  claim,  are  to  be  found  the  explanation  of  the  great 
struggle  between  the  Church  and  the  State  which  played  so 
important  a  part  during  this  period,  a  struggle  which  has 
not  entirely  died  out  at  the  present  time. 

The  doctrine  of  papal  supremacy  received  its  great  blow 
in  the  Reformation  on  the  continent  and  the  Puritan  move- 
ment in  England.  About  the  same  time  a  series  of  students 
and  writers  began  to  question  the  doctrine  of  the  divine 
right  of  kings.  While  not  directly  questioning  the  right  of 
kings  to  rule,  they  sought  to  find  some  warrant  for  their 
exercise  of  supreme  power  other  than  in  a  divine  sanction. 
This  .they  found  in  the  theory  of  a  supposititious  or  implied 
contract  between  the  people  and  the  ruler  that  the  latter 
should  rule  over  them,  or  in  a  hypothetical  compact  between 
the  people  themselves  that  they  should  be  ruled  over  in  this 


THE  THREE  TYPES  OF  GOVERNMENT        49 


way.  Chief  among  those  elaborating  this  theory  were  Jean 
Bodin  (1530-1596),  Johannes  Althusius  (1557-1638)  and 
Thomas  Hobbes  (1588-1679). 

It  Is  not  our  intention  to  enter  into  any  consideration  of 
this  very  interesting  theory.  All  that  it  is  desired  to  do  is 
to  point  out  that  here  is  afforded,  not  only  the  first  serious 
attack  upon  the  principle  of  the  divine  right  of  kings,  but 
in  the  elaboration  of  the  social  compact  or  contract  theory  of 
government,  the  germ  of  the  idea  of  popular  sovereignty 
which  was  afterwards  to  play  such  an  important  role  in 
historical  movements  and  in  the  evolution  of  political 
thought. 

The  next  great  event  in  the  development  of  this  doctrine 
was  the  struggle  in  England  between  the  Puritans  and  the 
Stuarts,  marked  by  the  establishment  of  the  Cromwellian 
Commonwealth,  the  deposition  and  execution  of  King 
Charles  I,  the  Restoration  and  the  Revolution  of  1688  which 
brought  William  of  Orange  to  the  English  Throne.  The 
significance  of  this  latter  event  lay  in  the  fact  that  for  the 
first  time  was  definitely  established  the  principle,  which  has 
ever  since  been  adhered  to  in  England,  that  the  King  owed 
his  throne,  not  to  divine  or  inherent  right,  but  to  selection 
by  Parliament,  which  latter  body  acted  in  this  capacity  as 
but  the  representative  of  the  people.  Today  the  English 
King  holds  office  by  virtue  of  an  act  of  Parliament  and  it  is 
within  the  authority  and  power  of  that  body  to  make  such 
change  in  respect  to  who  shall  occupy  the  throne,  or  indeed 
as  to  whether  the  monarchical  form  of  government  shall 
be  maintained  or  not,  as  it  sees  fit.  From  this  event  there- 
fore may  be  dated  the  definite  establishment  of  the  principle 
of  popular  sovereignty  in  England.  It  is  characteristic  of 
the  English  that  action  should  in  general  precede  theory. 
In  the  present  case  thus  it  may  be  said  that  the  actual  estab- 


50     THE  GOVERNMENT  OF  MODERN  STATES 

lishment  of  the  doctrine  of  popular  government  as  the  basic 
principle  of  the  political  system  took  place  before  the  doc- 
trine itself  was  consciously  or  deliberately  adopted  as  a 
philosophical  principle.  Even  to  this  day  the  English  are 
unwilling  to  change  many  of  the  outward  forms  of  admin- 
istration which  are  the  characteristic  features  of  a  purely 
autocratic  type  of  government. 

It  remained,  however,  for  the  closing  years  of  the 
Eighteenth  Century  to  mark  the  rise  to  ascendancy  of  this 
principle.  In  bringing  about  this  event  too  great  impor- 
tance cannot  Ix  attached  to  the  remarkable  influence  exerted 
by  the  preaching  and  writings  of  that  forerunner  of  the 
French  Revolution,  Jean  Jacques  Rousseau.  In  his  work 
entitled  "  The  Social  Contract "  was  definitely  announced 
and  asserted  for  the  first  time  the  principle  of  popular,  or 
as  it  was  more  generally  designated,  national  sovereignty. 
The  French  people,  long  restive  under  the  abuses  and  op- 
pressions of  the  old  regime,  nevertheless  were  held  to  allegi- 
ance to  their  king  by  the  centuries-old  belief  in  the  divine 
right  of  their  king  to  rule.  Rousseau's  influence  shook 
this  belief.  His  doctrine  of  national  sovereignty  furnished 
the  philosophical  basis  for,  and  justification  of,  the  Revolu- 
tion. What  might  have  been  merely  an  effort  to  depose  a 
ruler  and  select  another  who  would  give  greater  regard  to 
the  welfare  of  the  people  became  a  struggle  for  the  estab- 
lishment of  individual  liberties  and  the  right  of  the  people  to 
rule. 

This  doctrine  of  popular  sovereignty  and  individual  rights 
found  a  fertile  soil  in  the  new  world  and  was  used  by  the 
American  colonies  in  asserting  their  right  to  throw  off 
allegiance  to  the  British  government.  It  is  a  matter  of  no 
little  interest  from  this  standpoint  that  the  colonists  in  taking 
this  step  deemed  it  necessary  to  justify  their  action  to  the 


THE  THREE  TYPES  OF  GOVERNMENT        51 

public  and  the  world  in  their  Declaration  of  Independence 
that  they  were  but  exercising  a  right  which  was  inherently 
theirs. 

Popular  Government  a  Question  of  Fact:  Need  Not 
Be  Expressly  Declared  in  the  Constitution. —  That  a  gov- 
ernment may  be  a  popular  one  it  is  not  essential  that  the  pro- 
vision that  sovereignty  resides  in  the  people  shall  be 
explicitly  set  forth  in  the  constitution.  In  England  no  such 
provision  is  possible,  since  that  country  is  without  a  formu- 
lated constitution.  In  the  United  States  this  provision  is 
only  indirectly  set  forth  in  the  opening  words  or  preamble  of 
the  constitution  which  declare  that  "  We,  the  people  of  the 
United  States  ...  do  ordain  and  establish  this  constitu- 
tion.'* In  France  also  no  direct  declaration  of  popular  sov- 
ereignty is  to  be  found  in  her  fundamental  law.  In  all  these 
countries,  however,  there  cannot  be  the  slightest  doubt  about 
the  fact  of  the  government  being  of  the  type  resting  upon 
this  principle. 

The  most  definite  and  clear  assertion  of  popular  sover- 
eignty is  probably  ,to  be  found  in  the  constitutions  of  Bel- 
gium and  China.  The  former,  adopted  in  1831,  contains 
the  provision : 

Art.  25.  All  powers  emanate  from  the  people.  They  shall  be 
exercised  in  the  manner  established  by  the  constitution.  .  .  . 

The  constitution  of  China,  promulgated  May  I,  1914, 
contains  as  the  first  two  sections: 

Sec.  i.  The  Republic  of  China  is  composed  of  the  citizens  of  the 
Republic. 

Sec.  2.  The  sovereignty  of  the  Republic  of  China  originates  in 
the  whole  body  of  the  citizens. 

Popular  Government  Possible  in  a  Monarchy. —  Be- 


52     THE  GOVERNMENT  OF  MODERN  STATES 

fore  leaving  this  subject  it  is  important  again  to  draw  atten- 
tion to  the  fact  that  all  governments  monarchical  in  form 
are  not  Autocracies.  It  is  quite  possible,  as  the  case  of 
Great  Britain  evidences,  for  a  Monarchy  to  belong  to  the 
category  of  governments  resting  upon  the  legal  basis  of 
sovereignty  residing  in  the  body  of  the  people.  In  these  cases 
the  people,  in  meeting  the  problem  of  devising  a  government 
for  the  actual  exercise  of  political  powers,  have  chosen  to 
create  a  form  of  government  in  which  the  chief  magistrate 
shall  bear  a  monarchical  title,  such  as  King,  Emperor,  etc., 
shall  be  selected  in  much  the  same  manner,  and  have  a  tenure 
of  office  analogous  to  that  of  monarchs  at  the  head  of  gov- 
ernments resting  upon  the  principle  of  autocracy.  It  is  evi- 
dent that  in  such  cases  the  monarch  has  no  inherent  author- 
ity. He  has  only  such  as  has  been  granted  to  him  by  the 
sovereign  people.  He  is  but  one  of  the  agents  through 
which  the  latter  have  elected  to  exercise  their  powers.  This 
is  true  even  though  the  people  in  the  exercise  of  their  dis- 
cretion may  have  chosen  to  entrust  to  him  the  exercise^  of 
powers  exceeding  those  of  many  rulers  in  autocratic  Mon- 
archies. 

Comparison  of  the  Two  Types  of  Government:  Au- 
tocracy and  Popular  Government. —  These  facts  —  that 
two  opposing  doctrines  underly  and  represent  the  basic 
principle  upon  which  rest  all  modern  governments,  and  that 
the  adoption  of  one  or  the  other  of  these  doctrines  deter- 
mines in  the  most  fundamental  way  the  essential  character 
of  the  government  resulting  —  render  it  desirable  that  the 
attempt  should  be  made  to  state  and  evaluate  their  relative 
merits.  To  an  American  or  Englishman  who,  from  his 
earliest  youth,  has  been  trained  to  look  upon  Popular  Gov- 
ernment as  an  inherent  right,  and  the  only  system  possible 
of  philosophic  justification,  this  is  not  an  easy  thing  to  do. 


THE  THREE  TYPES  OF  GOVERNMENT        53 

The  mere  statement  of  the  practical  advantages  inhering  in 
an  autocratic  government  carries  with  it  the  suggestion  of 
disloyalty  to  the  principles  upon  which  our  own  government 
is  founded.  Notwithstanding  this  difficulty  and  disad- 
vantage a  work  such  as  the  present  one  would  be  seriously 
defective  were  the  attempt  not  made. 

The  best  method  of  approach  in  considering  this  question 
is  that  of  stating  the  advantages  which  experience  would 
seem  to  indicate  that  an  Autocracy  possesses  from  the  purely 
governmental  standpoint,  over  its  competitor  type,  Popular 
Government;  and,  in  doing  so,  attempt  to  determine  the 
extent  to  which  these  advantages  are  inherent  in  that  type, 
and  their  absence  in  Popular  Government  is  due  to  like 
inherent  limitations,  or  merely  to  the  failure  to  make  the 
technical  provisions  necessary  in  order  that  they  may  find 
expression. 

Approaching  the  question  from  this,  standpoint,  the  lead- 
ing merits  of  an  Autocratic  Government  are:  its  unity  of 
will,  its  simplicity  of  structure,  its  definiteness  as  regards 
the  location  and  exercise  of  authority,  and  its  consequent 
strength  and  effectiveness  in  operation.  A  government,  no 
more  than  an  individual,  can  function  without  arriving  at 
definite  decisions.  These  decisions  can  represent  oppor- 
tunist determinations  in  respect  to  particular  matters  as  they 
arise  or  successive  steps  in  the  carrying  out  of  a  carefully 
thought-out,  consistent  policy.  The  first  great  problem  in 
the  organization  of  any  government  is  the  provision  of 
means  through  which  this  general  will  of  the  State  may  be 
formulated  and  expressed.  In  an'  Autocracy  the  organ 
through  which  this  is  done  is  the  supreme  ruler,  an  organ 
possessing  in  the  highest  degree  the  qualities  of  unity  and 
continuity.  The  fact  that  provision  may  be  made  in  such  a 
government  for  a  popular  assembly  having  for  its  function 


54     THE  GOVERNMENT  OF  MODERN  STATES 

the  making  known  of  the  wishes  of  the  citizens  of  the  State, 
does  not  represent  an  infraction  of  this  principle.  Legally 
final  authority  rests  in  the  sovereign  ruler,  and  the  resolu- 
tions of  the  popular  assembly  have  advisory  force  only.  It 
is  true  that,  under  modern  conditions  the  legally  autocratic 
head  of  such  a  government  is,  as  a  matter  of  practical 
expediency,  compelled  to  give  great  weight  to  such  expres- 
sions of  opinion,  and  often  to  subordinate  his  own  desires 
to  those  thus  expressed.  In  considering  this  apparent  lim- 
itation upon  his  effective  powers,  it  is  important  to  note, 
however,  that  the  supreme  ruler,  in  consequence  of  his 
uniting  in  himself  the  functions  of  both  will-determination 
and  head  of  the  administration,  is  in  a  position  where  he  can 
play  a  powerful  part  in  molding  such  opinion,  in  compelling 
the  formal  resolutions  of  the  assembly  to  conform  to  his 
wishes,  and,  even,  in  many  cases,  of  overriding  it.  The  fact 
that  he  holds  office  by  a  permanency  of  tenure,  while  the 
composition  of  the  assembly  undergoes  constant  change, 
means,  furthermore,  that  the  ruler,  when  opposition  is  too 
strong,  has  only  to  bend  himself  temporarily  to  it,  reverting 
to  his  own  program  at  the  earliest  practicable  moment.  In 
this  connection  it  is  also  to  be  noted  that  in  all,  or  practically 
all,  governments  of  this  type  the  ruler  has  the  power  to  dis- 
solve the  assembly  which  refuses  to  act  in  accord  with  his 
will  and  to  summon  a  new  assembly,  a  power  which  is  con- 
stantly and  effectively  used  by  autocratic  rulers  to  insure  the 
carrying  out  of  their  will. 

Finally,  regard  must  be  had  to  the  fact  that  the  powers 
possessed  by  a  popular  assembly  in  an  Autocracy  to  make 
known  the  wishes  of  the  people  are  radically  different  in 
kind,  as  well  as  in  degree,  from  those  possessed  by  a  popular 
assembly  in  a  Popular  Government.  In  a  Popular  Govern- 
ment the  popular  assembly  is  the  principal,  and  the  chief 


THE  THREE  TYPES  OF  GOVERNMENT        55 


executive,  the  agent.  It  is  the  popular  assembly  which 
formulates  and  expresses  the  will  of  the  State.  In  a  govern- 
ment of  this  type  the  will-formulating  and  expressing  organ 
is  thus  one  possessing  neither  unity  nor  continuity.  It  is 
composed  of  a  large  number  of  individuals  and  its  composi- 
tion is  undergoing  constant  change.  Here  the  exceedingly 
difficult  problem  is  presented  of  evolving  a  collective  will 
from  a  number  of  individual  wills  which  represent  many 
conflicting  interests  and  aspirations  and  which  rarely,  if 
ever,  are  in  complete  accord.  Even  when  such  a  collective 
will  is  finally  evolved,  no  certainty  exists  that  it  will  persist 
for  any  length  of  time. 

It  is  evident  from  this  comparison  of  the  two  types  of 
government  from  the  will-formulating  or  policy-determin- 
ing standpoint  that  an  Autocracy  possesses  an  advantage 
which  it  is  difficult,  if  not  impossible,  to  secure  in  the  case 
of  a  Popular  Government.  This  advantage  is  especially 
apparent  in  the  field  of  foreign  relations ;  that  is,  in  respect 
to  the  determination  of  the  policy  that  will  be  assumed  by 
the  government  in  respect  to  its  relations  with  other  govern- 
ments and  the  fundamental  aims  of  the  government  in 
respect  to  its  standing  among  the  nations  of  the  world.  It 
is  possible  for  a  government  to  change  its  policy  in  respect 
to  internal  affairs  from  time  to  time  without  seriously 
jeopardizing  its  interests  or  those  of  its  citizens.  Indeed, 
with  changing  conditions,  it  may  be  highly  desirable  that  it 
should  do  so.  Its  decisions  in  this  field  affect  only  itself  and 
its  citizens ;  or,  at  least,  concern  other  governments  and  their 
citizens  in  but  an  indirect  way.  The  foreign  policy  of  a 
government,  however,  affects  in  a  most  direct  way  the  inter- 
ests of  other  governments.  In  an  unavoidable  sense  gov- 
ernments are  rivals,  even  though  such  rivalry  may  be  of  a 
friendly  character.  That  government  which  can  definitely 


56     THE  GOVERNMENT  OF  MODERN  STATES 

formulate  a  policy  in  respect  to  the  part  that  it  desires  to 
play  in  world  affairs,  and  is  in  a  position  where  it  can  con- 
sistently and  persistently  bend  its  efforts  to  its  execution, 
has  a  great  advantage  over  one  which  cannot  do  so.  This 
advantage  is  clearly  in  evidence  in  the  case  of  the  two  great 
Autocracies  of  the  present  time  —  Germany  and  Japan. 
No  one  can  study  the  recent  history  of  these  two  Autocracies 
without  perceiving  that  each  has  worked  out  for  itself  a  far- 
reaching  program  of  action  in  respect  to  the  place  that  it 
desires  to  occupy  among  the  nations  of  the  world  and  has 
continuously  devoted  every  effort  to  its  accomplishment. 
In  both  cases  this  program  has  represented  one  vitally  af- 
fecting the  interests  of  other  nations.  The  fact  that,  in 
the  case  of  Germany,  the  attempt  to  carry  out  this  pro- 
gram has  resulted  in  a  great  league  of  nations  to  protect 
themselves  against  the  carrying  out  of  this  program,  does 
not  in  any  way  destroy  the  technical  advantages  of  these 
two  powers  which  have  been  pointed  out.  They  merely 
evidence  the  fact  that  unwise  use  has  been  made  of  such 
advantage. 

A  second  analogous,  technical  advantage  of  the  autocratic 
type  of  government  is  the  similar  concentration  of  executive 
and  administrative  authority,  not  only  in  the  hands  of  a 
single  organ,  but  in  that  organ  which  is  at  once  the  one  hav- 
ing legal  responsibility  for  the  formulation  of  policies  and  a 
continuous  and  independent  tenure  of  office.  The  ruler  of 
an  Autocracy  is  unequivably  the  head  of  the  administra- 
tion. All  administrative  authority  is  vested  in  his  hands. 
All  officers  of  government,  civil  and  military,  are  his  agents. 
It  results  from  this  that  administrative  responsibility  is  defi- 
nitely located  and  the  line  of  authority  is  always  clear.  The 
administrative  services  are  thus  but  parts  of  one  highly  in- 
tegrated and  correlated  piece  of  administrative  mechanism, 


THE  THREE  TYPES  OF  GOVERNMENT        57 

and  dangers  of  duplication  or  overlapping  of  organization  or 
activities  are  reduced  to  a  minimum.  Such  conflicts  be- 
tween services  as  do  arise  are  easily  adjusted  by  the  superior 
organ  of  administration,  of  which  they  are  parts. 

In  a  Popular  Government  the  source  of  administrative 
authority,  as  distinct  from  executive  authority,  is  the  pop- 
ular assembly.  It  is  the  body  which  determines  not  only 
administrative  policies,  but  the  organs  and  procedure  that 
shall  be  employed  in  their  execution.  Administrative  offi- 
cers are  agents  of  the  popular  assembly,  not  of  the  chief 
executive.  It  thus  results  that  the  same  disadvantages  that 
a  government  of  this  type  is  under  in  respect  to  the  determi- 
nation of  policies  is  found  in  the  field  of  administration. 
The  consequences  resulting  from  these  two  systems  of  locat- 
ing administrative  authority  can  best  be  shown  by  comparing 
administrative  conditions  in  Germany  and  the  United  States. 

For  years  the  German  government  has  been  held  up  as  the 
leading  example  of  governmental  efficiency.  This  efficiency 
has  very  generally  been  ascribed  to  the  special  capacity  of 
the  German  people  for  organization  and  the  conduct  of  ad- 
ministrative affairs.  This  is  a  mistake.  There  is  no  evi- 
dence that  the  German  people,  as  individuals,  possess  any 
such  capacity  superior  to  that  of  the  American  people.  The 
real  secret  of  the  undoubted  superior  administrative  effi- 
ciency of  the  German  government  over  that  of  the  United 
States  lies  in  its  autocratic  character.  If  one  seeks  for  the 
fundamental  explanation  of  why,  in  the  United  States, 
there  are  found  such  evils  as  the  pork  barrel,  log-rolling, 
special  legislation,  a  system  for  the  appropriation  of  funds 
making  no  approach  to  proper  budgetary  requirements,  the 
spoils  system,  and  a  failure  to  develop  a  permanent,  trained, 
technical  personnel  of  administration;  while,  in  Germany, 
these  evils  either  do  not  exist  at  all,  or  are  on  a  much  smaller 


58      THE  GOVERNMENT  OF  MODERN  STATES 

scale,  the  answer  must  be  found  in  this  fundamental  differ- 
ence between  the  governments  of  the  two  countries  in  respect 
to  the  location  of  administrative  authority. 

In  the  autocratic  government  of  Germany  administrative 
authority  is  located  in  an  organ  which  is  wholly  outside  of 
the  field  of  influence  of  party  politics  and  largely  outside  of 
the  field  of  popular  control.  Every  administrative  officer 
from  the  monarch  himself  to  the  lowest  petty  clerk  occupies 
this  independent  position.  They  are  officers  of  the  State, 
rather  than  servants  of  the  people.  As  such  their  interest 
is  in  the  State,  rather  than  in  that  of  any  particular  locality 
or  class.  Under  such  circumstances  it  is  but  natural  that 
there  should  be  developed  a  permanent  trained  bureaucracy 
for  the  conduct  of  affairs ;  that  a  consistent  work  program 
should  be  adopted ;  and  that  proper  means  for  financing  such 
work  should  be  employed.  All  this  is  due  to  the  fact  that 
matters  of  administration  are  in  the  hands  of  agents  who 
stand  outside  the  field  of  party  politics  and  popular  pressure. 
It  has  been  the  good  fortune  of  the  author  to  have  himself 
had  a  practical  experience  in  the  conduct  of  public  affairs 
under  a  system  of  government  such  as  this.  For  a  matter 
of  eight  years  he  was  one  of  the  six  heads  of  administra- 
tive departments  of  the  government  of  Porto  Rico.  In  this 
government  all  administrative  powers  were  vested  in  a  Gov- 
ernor and  these  six  heads  of  departments,  all  of  whom  were 
appointed  by  the  President  of  the  United  States.  It  re- 
sulted from  this  that  Porto  Rico  had,  from  the  administra- 
tive standpoint,  an  autocratic  government.  All  administra- 
tive authority  was  vested  in  officers  who  were  wholly  out- 
side the  field  of  party  politics  in  the  Island.  They  did  not 
owe  their  office  to  any  political  party,  and  were  under  no 
obligation  to  any  section  or  class  of  the  community.  The 
result  was  that  Porto  Rico  had  an  administration  of  its  gov- 


THE  THREE  TYPES  OF  GOVERNMENT        59 


ernmental  affairs  that  was  similar  in  all  essential  respects 
to  that  of  Germany.  It  is  the  belief  of  the  author  that,  in 
point  of  efficiency,  the  Island  had  an  administration  of  af- 
fairs equal,  if  not  superior,  to  that  possessed  by  any  state 
of  the  Union.  This  was  due,  not  to  any  special  competence 
or  highmindedness  of  its  officials,  but  to  the  conditions  under 
which  they  had  to  perform  their  work.  In  Porto  Rico,  as 
in  Germany,  the  secret  of  administrative  efficiency  is  thus 
found  in  the  independence  of  the  administrative  personnel, 
rather  than  in  the  personal  qualities  or  attainments  of  the 
individuals  constituting  this  personnel. 

In  the  foregoing  we  have  sought  to  set  forth  what  are 
believed  to  be  certain  incontestable  advantages  of  the  auto- 
cratic type  of  government.  There  is,  however,  another  side 
to  the  story.  A  government  is  not  a  mere  piece  of  inani- 
mate administrative  machinery.  It  is  an  organization  that 
must  be  operated  by  human  beings,  and  in  the  interests  of 
human  beings,  who  themselves  take  an  active  part  in  its 
operation.  Good  government  means  something  more  than 
good  administration.  It  means  a  government  that  in  its 
practical  operations  has  regard  for  the  aspirations  and  wel- 
fare of  the  people  subject  to  it,  rather  than  the  ambitions 
and  interests  of  those  in  charge  of  the  governmental  machin- 
ery. A  government  thus  has  its  moral  as  well  as  its  material 
aspects. 

In  pointing  out  the  merits  of  the  autocratic  type,  it  will  be 
noted  that  we  have  at  all  times  been  careful  to  qualify  these 
merits  as  technical  ones.  We  are  now  going  to  see  that,  if 
such  a  government  is  considered  from  other  than  its  purely 
technical  aspect;  that  if  we  view  it  from  its  human  or  moral 
side,  it  presents  elements  of  danger,  if  not  positive  defects. 

In  our  consideration  of  the  nature  of  the  State  it  has  been 
pointed  out  that  the  State  may  be  deemed  to  have,  from 


60      THE  GOVERNMENT  OF  MODERN  STATES 

certain  standpoints,  a  personality.  As  the  possessor  of  per- 
sonality, it  may  thus  have  interests  distinct  from,  if  not 
indeed  antagonistic  to,  the  interests  of  the  individuals  com- 
posing it.  To  cite  but  one  common  illustration:  generally 
speaking  it  is  for  the  interests  of  the  State  to  raise  the  larg- 
est sum  possible  by  way  of  taxation  or  otherwise,  while  it  is 
often  for  the  interest  of  the  individual  to  keep  his  tax  bur- 
dens at  the  lowest  sum  feasible.  It  is  precisely  in  this  lack 
of  correspondence,  if  not  positive  antagonism,  between  the 
interests  of  the  State  and  of  the  individual  that  lie  the  dan- 
gers inherent  in  the  autocratic  type  of  government.  This 
danger  is  that  the  autocrat,  holding  his  office  as  he  does  by 
no  election  by  the  people  and  legally  not  subject  to  their  con- 
trol, will  look  upon  the  interest  of  the  State  as  his  primary 
concern.  He  represents,  indeed  personifies,  the  State.  If 
he  exercises  his  powers  to  their  full  legal  extent,  he  is,  as 
Louis  XIV  expressed  it,  the  State.  In  many  cases  the  peo- 
ple themselves  are  looked  upon  by  him  almost  as  enemies  of 
the  State,  or  at  least  that  portion  which  opposes  his  wishes 
is  so  regarded.  The  people  are  subjects  not  citizens. 

This  combination  of  the  ruler  representing  the  State  qua 
State,  and  possessing  legally  unlimited  powers  is  what  gives 
to  the  autocratic  government  its  special  character.  In  prac- 
tice it  profoundly  affects  the  manner  in  which  the  affairs  of 
government  are  actually  conducted,  both  in  times  of  war  and 
peace.  It  means  that  in  peace  the  management  of  the  affairs 
of  government  will  be  in  the  hands  of  a  bureaucracy.  The 
term  bureaucracy  is  here  used  in  a  restricted  or  special  sense. 
All  governments  have  to  make  use  of  a  systematically  organ- 
ized personnel  for  its  administration.  Such  a  personnel  in 
a  Popular  Government,  is,  however,  quite  a  different  thing 
from  the  bureaucracy  of  an  autocratic  government.  The 
personnel  of  the  latter  are,  it  is  true,  necessarily  recruited 


THE  THREE  TYPES  OF  GOVERNMENT        61 

from  among  the  people.  Once  recruited,  however,  they 
constitute  an  officialdom  with  a  tenure  of  office  dependent 
upon  the' will  of  the  ruler  and  largely  independent  even  of 
that  control  which  comes  from  the  working  of  popular  opin- 
ion. This  profoundly  affects  their  whole  attitude  towards 
the  people  in  respect  to  the  performance  of  their  duties.  It 
is  this  attitude  which  has  given  to  the  term  bureaucracy  its 
special  significance  as  representing  a  narrow  self-sufficient 
and  arbitrary,  if  not  actually  oppressive,  administration  of 
affairs.  In  no  place,  so  far  as  the  author  is  aware,  has  this 
contrast  between  the  two  systems  of  administration  been 
more  effectively  brought  out  than  in  the  excellent  study  of 
European  police  systems  made  by  Raymond  B.  Fosdick. 
In  his  introductory  chapter  on  "  The  Purpose  and  Function 
of  the  Police,"  he  said : x 

To  this  divergence  of  problems  (economic  conditions,  etc.)  as 
well  as  to  the  distinct  historic  evolution  through  which  each  of  the 
European  nations  has  come,  we  must  look  for  an  explanation  of 
the  differences  in  power  and  authority  conferred  upon  the  police. 
In  no  two  countries  is  the  conception  of  the  police  in  its  relation  to 
the  public  exactly  the  same.  In  Great  Britain  the  police  are  the 
servants  of  the  community.  Their  official  existence  would  be  im- 
possible if  their  acts  persistently  ran  counter  to  the  expressed 
wishes  of  the  people.  They  depend  for  their  effectiveness  upon 
public  sanction.  They  are  civil  employees  whose  primary  duty 
is  the  preservation  of  public  security.  ...  In  sharp  contrast  is  the 
continental  theory,  which,  evolved  from  the  necessities  of  autocratic 
government,  makes  of  the  police  force  the  strong  arm  of  the  ruling 
classes.  The  continental  policeman  is  the  servant  of  the  crown  or 
the  higher  authorities;  the  people  have  no  share  in  his  duties,  nor 
indeed,  any  connection  with  them. 

This  same  difference  in  respect  to  the  status  of  officials 

1 "  European  Police  Systems,"  by  Raymond  B.  Fosdick.  Publications 
of  the  Bureau  of  Social  Hygiene.  The  Century  Co.,  New  York,  1916. 


62      THE  GOVERNMENT  OF  MODERN  STATES 

and  their  attitude  towards  their  duties  and  the  public  runs 
through  all  branches  of  civil  administration  in  the  two  types 
of  government.  Apart  from  the  fact  that  in  an  Autocracy 
a  bureaucracy  of  this  character  may  act  with  an  arrogance 
and  disregard  of  the  wishes,  or  even  rights,  of  the  public 
is  the  further  fact  that,  in  it,  the  ruler  has  at  his  disposal 
a  machine  that  he  can  use  with  tremendous  force  to  mold 
public  opinion  to  his  way  of  thinking,  or  to  coerce 
the  people  in  the  election  of  such  representatives  as  the 
political  system  of  the  Autocracy  may  make  provision  for. 
That  the  power  so  possessed  by  the  ruler  in  the  leading 
Autocracy  of  Europe,  Germany,  is  so  used  no  one  familiar 
with  political  conditions  in  that  country  will  for  a  moment 
deny.  Indeed,  its  use  is  not  only  acknowledged  by  Ger- 
many, but  justified  as  a  perfectly  legitimate  use  by  the  ruler 
of  his  powers  in  order  to  advance  the  welfare  of  the  State  as 
he  sees  it. 

It  is,  however,  when  we  turn  from  a  consideration  of  the 
influence  of  an  Autocracy  upon  the  conduct  of  governmental 
affairs  in  times  of  peace,  to  its  influence  upon  the  question 
of  the  State  being  plunged  into  war,  and  the  conditions 
under  which  war  shall  be  prosecuted  and  finally  brought  to  a 
termination,  that  we  have  to  do  with  the  most  serious  danger 
that  is  inherent  in  an  Autocracy.  Militarism  is  the  twin 
brother  to  bureaucracy.  Or,  to  change  the  metaphor, 
bureaucracy  and  militarism  constitute  the  two  arms  of  the 
autocrat  through  which  he  is  enabled  to  maintain  himself 
and  make  his  will  prevail.  There  has  been  much  confusion 
in  the  United  States  in  respect  to  precisely  what  is  meant 
when  the  term  militarism  is  employed  as  a  term  of 
opprobrium.  Militarism  as  so  used  is  not  synonymous  with 
the  maintenance  of  a  large  military  establishment.  The  dis- 
tinction between  the  two  is  precisely  that  which  we  have 


THE  THREE  TYPES  OF  GOVERNMENT         63 

sought  to  draw  between  a  bureaucracy  in  an  Autocracy 
and  an  administrative  personnel  in  a  Popular  Government. 
A  military  system  in  an  Autocracy  means  the  existence  of  a 
force  of  soldiers  who  are  agents  of  the  State,  rather  than 
guardians  of  the  public.  They  constitute  a  military  class 
accountable  to  no  one  but  the  autocratic  ruler.  The  fact 
that  the  soldiers  are  drawn  from  the  people,  or  that  the 
system  rests  upon  the  principle  of  universal,  compulsory  mil- 
itary service,  in  no  way  lessens  their  character.  The  dis- 
tinction between  them  and  the  army  of  a  Popular  Govern- 
ment is  essentially  one  of  kind,  not  of  size  or  degree. 

If  now  the  attempt  is  made  to  draw  together  these  various 
lines  that  we  have  been  considering  it  will  be  seen  how  inev- 
itably they  all  tend  to  make  of  an  Autocracy  a  restless  and 
aggressive  State,  one  which  is  a  constant  menace  to  its  neigh- 
bors, and  to  the  peace  of  the  world.  They  reveal  clearly  the 
justification  of  the  statement  of  President  Wilson  in  taking 
the  final  step  by  which  the  United  States  entered  the  great 
war,  that  the  world  must  be  made  safe  for  Democracy.  In 
an  Autocracy  the  State  is  not  looked  upon  purely  as  a  means 
brought  into  existence,  or  maintained  by,  the  people  com- 
posing it  for  the  promotion  and  protection  of  their  indi- 
vidual interests,  as  is  the  case  in  a  Popular  Government.  It 
is  deemed  to  have  a  life,  interests  and  ambitions  quite 
distinct  from  those  of  its  constituent  citizen  members.  This 
emphasized  personality  finds  concrete  expression  in  the  per- 
son of  an  autocrat  who  believes  that  he  has  his  authority 
by  inherent  right,  and  that  he  represents  the  State,  rather 
than  the  people  composing  the  State.  It  is  inevitable  that, 
under  these  circumstances,  such  an  autocrat  will  deem  it  his 
primary  obligation  to  seek  to  advance  the  interests  and  am- 
bitions of  the  State  as  a  State.  Now  the  interests  and 
ambitions  of  a  State  as  a  State  are  largely  of  a  political  and 


64     THE  GOVERNMENT  OF  MODERN  STATES 

territorial  character.  They  represent  the  desire  to  possess 
or  control  the  largest  possible  portion  of  the  territory  of  the 
globe  and  to  exercise  the  largest  possible  influence  in  the 
determination  of  the  destinies  of  its  population.  These 
ambitions  can  thus  only  be  fully  realized  more  or  less  at  the 
expense,  absolutely  or  relatively,  of  other  States.  If  to  this 
situation  is  joined  the  fact  that  the  individual,  having  from 
the  very  nature  of  his  status  and  tenure  of  office  this  am- 
bition, also  has  supreme  control  over  all  the  powers  of  the 
State,  as  represented  by  its  civil  and  military  forces,  appreci- 
ation can  be  had  of  the  almost  inevitability  that  an  auto- 
cratic government  will  be  one  seeking  constantly  to  extend 
its  influence  and  power  in  the  world,  and,  as  such,  one  con- 
stituting a  permanent  menace  to  the  peace  of  the  world. 
This,  in  fact,  has  been  the  actual  experience  in  respect  to 
Autocracies  throughout  the  history  of  the  world. 

Internally  an  Autocracy  has  another  consequence  which 
is  of  the  utmost  importance.  Due  to  the  fact  that  the 
ruler  and  his  agents,  the  bureaucracy  and  the  military,  repre- 
sent the  State  rather  than  the  citizens  of  the  State,  and  that 
their  primary  interest  is  in  the  State,  the  government  inev- 
itably tends  to  become  one  in  which  great  extension  is  given 
to  the  function  of  regulating  the  conduct  of  the  people. 
This  is  a  prime  characteristic  of  all  Autocracies.  The 
emphasis  tends  to  be  placed  on  the  general  interests  of  the 
government  and  the  people  collectively,  rather  than  on  the 
interests  of  individuals.  This  finds  expression  in  the  trend 
towards  state  ownership  and  control  of  public  utilities  and 
all  enterprises  affected  with  a  public  interest  and  the  regu- 
lation and  control  of  individual  conduct  in  the  most  diverse 
and  far-reaching  manner.  This  tendency  to  control  indi- 
vidual freedom  extends  even  to  such  matters  as  the  expres- 
sion of  opinion  through  speech  or  the  press,  the  right  to 


THE  THREE  TYPES  OF  GOVERNMENT        65 

effect  organizations,  the  free  play  of  political  activities,  etc. 
The  principle  is  that  the  State  comes  first,  that  the  interest 
of  the  individual  must  give  way  to  its  interest,  and  that  the 
individual  will  realize  his  interest  through  the  State.  This 
explains  the  persistent  effort  on  the  part  of  the  German  gov- 
ernment to  check  the  social-democratic  party.  It  seems  a 
monstrous  abuse  of  power  for  the  government  to  use  its 
power  to  defeat  a  political  party.  In  Germany  such  action  is 
deemed  to  be  but  a  natural  and  legitimate  use  of  the  power 
of  self-defense  by  the  State.  There  is  thus  no  place  for  the 
free  play  of  political  parties  in  an  Autocracy  such  as  exists 
in  and  constitutes  a  normal  and  essential  feature  of  a  Pop- 
ular Government. 

If  now  we  attempt  to  sum  up  the  long  comparison  we  have 
made  of  these  two  types  of  government  it  will  be  found 
that  application  of  the  autocratic  principle  means :  a  govern- 
ment of  the  people  by  a  bureaucracy,  civil  and  military, 
deriving  its  powers  not  from  the  people  or  accountable  to 
them,  but  from  a  ruler  who  in  turn  exercises  his  authority 
by  what  may  be  termed  inherent  right;  a  government  in 
which  the  primary  concern  of  the  government  is  the  pro- 
motion of  the  interests  and  ambitions  of  the  State  qua 
State;  one  in  which  consequently  the  interests  and  freedom 
of  the  individual  must  give  way  to  the  interests  of  the  State 
whenever  the  two  are  believed  to  be  in  conflict;  one  in  which 
the  emphasis  is  placed  upon  collective,  rather  than  individual, 
welfare,  and  where  the  activities  of  the  government,  in  the 
way  of  either  the  direct  ownership  and  operation  of  inter- 
prises  or  the  control  and  regulation  of  private  enterprises, 
will  be  upon  a  large  scale;  where  this  power  of  the  govern- 
ment over  individual  conduct  will  extend  to  all  fields,  re- 
ligion, education,  politics,  expression  of  opinion  through 
speech  or  the  press,  organization  of  associations  of  all  kinds, 


66     THE  GOVERNMENT  OF  MODERN  STATES 

etc. ;  in  a  word,  one  of  directed  and  regulated  conduct  in  the 
internal  field  and  aggressive  action  in  the  field  of  foreign 
politics. 

The  application  of  the  principle  of  Popular  Government, 
on  the  other  hand,  means  a  government  of  the  people  by  a 
governing  personnel  deriving  its  powers  from  the  people, 
and  subject  in  the  last  analysis  to  their  control ;  one  in  which 
the  primary  interest  of  the  government  is  the  promotion  of 
the  interests  of  the  individual  qua  individual ;  where  the  gov- 
ernment is  looked  upon  merely  as  an  agent  of  the  people  for 
promoting  and  protecting  their  interests  and  rights ;  where 
every  emphasis  is  placed  upon  individual  liberties  and  rights ; 
where  the  government  engages  in  activities  and  enforces 
rules  governing  individual  conduct  only  where  such  action 
can  be  clearly  demonstrated  to  be  in  the  interests  of  the  indi- 
vidual ;  one  where  it  is  of  the  essence  of  the  system  that  the 
individual  shall  have  all  possible  freedom  of  religion, 
thought,  opinion,  and  right  to  express  such  opinion  and, 
especially  freedom  to  organize  and  take  such  action  as  is 
necessary  to  make  known  his  opinions  and  wishes  in  the  field 
of  politics. 

Broadly  speaking  then  the  distinguishing  merits  of  the 
autocratic  type  lie  in  its  mechanical  aspects.  They  are 
summed  up  in  the  opinion  so  often  expressed  that  the  best 
government  is  an  Absolutism,  provided  it  is  a  benevolent 
Absolutism.  There  can  be  no  question  but  that  from  the 
purely  administrative  standpoint  the  autocratic  type  pos- 
sesses inherent  advantages  that  can  be  secured  with  great 
difficulty  by  the  popular  government  type.  The  advantages 
of  the  popular  government  type,  on  the  other  hand,  are  to 
be  found  chiefly  in  the  moral  field:  the  larger  life  and  free- 
dom given  to  the  individual;  the  greater  probability  that 


THE  THREE  TYPES  OF  GOVERNMENT        67 

action  will  conform  to  his  interests  and  wishes;  the  desire 
to  maintain  amicable  relations  with  other  powers. 

Though,  in  the  foregoing,  stress  has  been  laid  upon  the 
superiority  of  Popular  Government  over  Autocracy  from  the 
moral  or  personal  standpoint,  it  is  of  importance  to  note  that 
it  is  by  no  means  impossible  for  the  former  type  of  govern- 
ment to  secure  many  of  the  purely  technical  advantages 
which  are  inherent  in  the  latter,  provided  it  will  resolutely 
apply  itself  to  the  task.  Efficient  administration  is  not  im- 
possible in  a  Popular  Government.  It  is  merely  more  diffi- 
cult to  attain.  To  anticipate  what  will  be  more  fully  consid- 
ered later  on,  the  more  essential  steps  that  must  be  taken  by  a 
Popular  Government  to  secure  the  efficiency  of  an  Autocracy 
are :  that  the  chief  executive  shall  be  given  the  definite  status 
and  powers  of  administrator-iii-chief  of  the  government; 
that,  while  the  legislature  need  not  surrender  its  function 
as  the  controlling  organ,  it  shall  look  to  the  chief  executive, 
acting  as  head  of  the  administration,  to  formulate  the  annual 
financial  and  work  program  to  be  considered  by  it;  that  it 
will  organize  its  several  administrative  services  so  that  they 
will  constitute  an  harmonious  piece  of  mechanism;  and, 
finally,  that  it  will  provide  for  an  administrative  personnel, 
having  a  permanency  of  tenure,  selected  and  promoted 
strictly  in  accordance  with  merit  and  thus  removed  from 
sectional  and  party  interests.  The  three  great  requisites  of 
administrative  efficiency  in  a  Popular  Government  are,  in 
other  words,  the  adoption  of  a  scientifically  devised  budget 
system,  the  establishment  of  an  integrated  administrative 
system,  and  the  definite  application  of  the  merit  system  in 
respect  to  the  selection  and  advancement  of  personnel.  The 
great  problem  confronting  a  Popular  Government  is  thus 
that  of  achieving  administrative  efficiency  by  providing  for 


\68      THE  GOVERNMENT  OF  MODERN  STATES 

greater  concentration  and  unity  of  responsibility  in  respect 
to  the  actual  conduct  of  public  affairs,  while  holding  fast  to 
its  inestimable  merits  of  placing  primary  emphasis  upon  the 
interests,  rights  and  freedom  of  the  individual. 

It  is  important  to  realize  also  that  Popular  Government 
is  in  other  respects  a  type  of  government  that  is  much  more 
difficult  to  organize  and  operate  than  that  of  an  Autocracy. 
It  requires  a  homogeneity,  intelligence  and  toleration  on  the 
part  of  the  people  seeking  to  operate  such  a  system  that  is 
not  possessed  by  all  people.  In  general  these  qualities  have 
to  be  gradually  acquired  as  the  result  of  long  experience. 
Especially  is  it  difficult  for  a  people  suddenly  to  pass  from 
an  Autocracy  to  a  Popular  Government.  The  chaotic  con- 
ditions following  the  Revolution  of  1911  in  China  and  that 
of  1917  in  Russia  are  the  direct  outcome  of  the  attempt  to 
substitute  at  one  stroke  Popular  Government  for  Autocracy. 
Similar  conditions  would  undoubtedly  prevail  were  the  at- 
tempt made  at  once  to  confer  full  powers  of  self  govern- 
ment upon  the  inhabitants  of  many  of  the  colonies  and  de- 
pendencies of  modern  States.  In  respect  to  these  the  best 
thing  that  can  be  done  is  to  keep  firmly  in  mind  the  desirabil- 
ity of  progressively  conferring  upon  these  peoples  the  right 
of  self  government  as  fast  as  circumstances  permit,  and  of 
organizing  and  directing  their  political  institutions  with  this 
deliberate  policy  in  view. 

Tendency  for  the  Doctrine  of  Popular  Sovereignty  to 
Prevail. —  If  now  we  survey  this  subject  as  a  whole,  we  find 
that  the  past  century  or  century  and  a  half  have  been  marked 
by  a  contest  between  these  two  opposing  principles. 
Though,  as  has  been  pointed  out,  victory  has  fallen,  now  to 
one  principle,  and  now  to  the  other,  there  can  be  no  doubt 
that  the  general  movement  has  been  from  Autocracy  to  Pop- 
ular Government.  If  we  are  to  judge  at  all  from  this 


THE  THREE  TYPES  OF  GOVERNMENT        69 

experience,  the  conclusion  must  be  reached  that  it  is  only  a 
question  of  time  when  the  latter  doctrine  will  be  universally 
held  and  the  belief  be  general  that  supreme  political  author- 
ity should  be  deemed  to  rest  with  the  people ;  that  all  officers 
of  the  government  from  the  chief  magistrate  to  the  lowest 
civil  servant  or  private  in  the  ranks  are  but  agents,  em- 
ployees of  the  sovereign  people;  that  they  have  no  authority 
but  such  as  has  been  explicitly  granted  to  them  by  such 
supreme  source  of  authority ;  and  that,  as  agents,  they  should 
be  held  to  rigid  accountability  to  their  principal  for  the 
manner  in  which  they  discharge  their  duties. 

The  Struggle  for  Popular  Government  in  Germany 
and  Japan. —  The  governments  of  Germany  and  Japan 
constitute,  as  has  been  pointed  out,  the  leading  examples  of 
the  autocratic  type  of  government  at  the  present  time.  The 
citizens  of  those  countries  are,  however,  by  no  means  unani- 
mous in  support  of  this  type.  In  both,  there  has  been  for 
years  a  strong  and  growing  demand  that  it  be  abolished  and 
that  the  principle  of  popular  sovereignty  be  substituted  in 
its  place.  In  form  this  movement  has  been  one  for  the 
adoption  of  what  is  known  as  parliamentary  responsibility; 
that  is,  that  the  officers  of  the  government  will  be  responsible 
to  the  lower  branch  of  the  legislature  instead  of  to  the 
Crown.  As  the  members  of  the  lower  house  are  elected  by 
the  people,  and  parliamentary  responsibility  means  that  offi- 
cers shall  hold  office  only  so  long  as  their  actions  conform  to 
the  wishes  of  the  majority  of  such  members,  this  would 
mean  that  the  source  of  authority  would  be  transferred  from 
the  Crown  to  the  people. 

As  this  is  being  written  word  has  come  from  Germany 
that  this  struggle  is  about  to  be  successful.     In  a  formal 
address  to  the  Reichstag,  the  lower  house  of  the  German, 
legislature,  on  October  5,  1918,  the  new  chancellor,  Prince 


70      THE  GOVERNMENT  OF  MODERN  STATES 

Maximilian,  on  assuming  office  stated  that  the  fundamental 
decision  had  been  reached  that  thereafter  the  Chancellor  and 
the  other  ministers  of  the  Crown  would  be  responsible  to  the 
Reichstag  instead  of  to  the  Kaiser.  He  said  that  this  de- 
cision had  been  reached  by  an  agreement  on  the  part  of  the 
federated  governments  and  the  leaders  of  the  majority 
parties  in  the  Reichstag.  This  intention  to  convert  the 
government  of  Germany  from  an  Autocracy  to  a  Popular 
Government  was  still  more  emphatically  expressed  in  the 
reply  of  the  German  Government  given  on  October  20,  1918, 
to  the  communication  of  the  President  of  the  United  States 
in  response  to  the  request  that  the  latter  take  steps  for  the 
granting  of  an  armistice  having  in  view  the  termination  of 
the  present  great  war.  In  this  reply  the  German  Govern- 
ment stated : 

Hitherto  the  representation  of  the  people  in  the  German  Empire 
has  not  been  endowed  with  an  influence  on  the  formation  of  the 
Government.  The  constitution  did  not  provide  for  a  concurrence 
of  the  representation  of  the  people  in  decisions  on  peace  and  war. 
These  conditions  have  just  now  undergone  a  fundamental  change. 
The  new  Government  has  been  formed  in  complete  accord  with  the 
wishes  of  the  representation  of  the  people,  based  on  the  equal,  uni- 
versal, secret,  direct  franchise.  The  leaders  of  the  great  parties 
of  the  Reichstag  are  members  of  this  Government.  In  future  no 
Government  can  take  or  continue  in  office  without  possessing  the 
confidence  of  the  majority  of  the  Reichstag.  The  responsibilities 
of  the  Chancellor  of  the  Empire  to  the  representation  of  the  people 
are  being  legally  developed  and  safeguarded.  The  first  act  of  the 
new  Government  has  been  to  lay  before  the  Reichstag  a  bill  to  al- 
ter the  constitution  of  the  Empire  so  that  the  consent  of  the  repre- 
sentation of  the  people  is  required  for  decisions  on  war  and  peace. 
The  permanence  of  the  new  system  is,  however,  guaranteed  not 
only  by  constitutional  safeguards,  but  also  by  the  unshakable  de- 
termination of  the  German  people  whose  vast  majority  stands  be- 
hind these  reforms  and  demands  their  energetic  continuance. 


THE  THREE  TYPES  OF  GOVERNMENT        71 


The  foregoing  represents  merely  a  declaration  of  inten- 
tion. Before  it  can  be  fully  put  into  execution  profound 
changes  must  be  made,  not  only  in  the  Imperial  constitution 
but  in  the  constitutions  of  Prussia  and  the  other  constituent 
states  of  the  Empire.  Though  the  sincerity  of  this  declara- 
tion is  questioned  by  many,  and  the  fear  expressed  that  it 
represents  only  a  move  to  meet  a  temporary  political  exi- 
gency, it  must  nevertheless  be  taken  as  one  of  great  import. 
Taken  in  connection  with  the  strong  demand  for  Responsible 
Government  that  had  existed  prior  to  the  outbreak  of  the 
war,  it  can  only  mean  that  a  long  step  has  been  made  towards 
Popular  Government,  if  that  form  of  government  has  not 
been  definitely  established. 

At  almost  the  same  time  that  this  action  was  taken  by 
Germany  news  has  also  come  from  Japan  that  the  new  min- 
istry just  established  was  one  which  had  been  constituted 
on  the  basis  of  representing  the  wishes  of  the  lower  house. 
If  this  practice  is  continued,  here,  too,  the  government  is  in 
the  process  of  passing  from  the  autocratic  to  the  popular 
government  type. 

It  will  thus  be  seen  that  in  the  foregoing  we  have  not 
been  indulging  in  the  mere  exposition  of  the  subtleties  of 
political  theory.  On  the  contrary,  we  have  not  only  been 
determining  the  essential  difference  that  exists  between 
different  forms  of  government,  but  gaining  an  insight  into 
the  true  character  of  the  political  movements  which  have 
played  so  important  a  role  in  the  history  of  Europe  during 
the  nineteenth  century,  and  which  are  still  at  work  there  and 
in  the  far  East ;  —  movements  which  have  had  as  their 
great  end  the  conversion  of  Autocracies  from  an  Absolutism 
to  a  Constitutional  Monarchy,  and,  in  some  cases,  the  more 
fundamental  change  of  converting  a  government  from  an 
Autocracy  to  Popular  Government. 


CHAPTER  IV 

THE  TWO  TYPES  OF  GOVERNMENT  ACCORDING  TO  THE  MAN- 
NER  OF   EXERCISE   OF    SOVEREIGNTY:    ABSOLUTE 
AND   CONSTITUTIONAL 

In  the  preceding  chapter  we  have  seen  that  all  govern- 
ments may  be  primarily  divided  into  three  classes  according 
to  where  the  supreme  authority,  or  sovereignty,  is  deemed 
to  reside.  Of  these  three  classes  only  two,  Autocracies  and 
Popular  Governments,  are,  however,  at  the  present  time 
of  practical  importance.  We  are  now  to  see  that  each  of 
these  two  types  may  be  further  subdivided  into  two  classes 
according  to  the  principle  adopted  in  providing  for  the  exer- 
cise of  this  sovereign  authority. 

Distinction  Between  Governments  of  Authority  and 
Governments  of  Law. —  If  we  analyze  the  problem  that  is 
presented  to  a  people  after  it  has  decided  upon  the  location 
of  sovereignty,  it  will  be  found  that  the  possessor  of  sov- 
ereignty has  presented  to  it  two  alternative  methods  of 
action.  It  can  exercise  the  supreme  power  vested  in  it 
arbitrarily;  that  is,  without  deeming  itself  to  be  bound  by 
any  general  rules  of  conduct,  or  subject  to  any  obligation 
to  make  its  action  uniform  or  consistent,  action  in  each  case 
being  determined  by  its  will  at  the  time,  or  the  seeming 
exigency  of  that  particular  case.  Or,  it  can  frame  general 
rules  by  which  it  undertakes  to  be  guided,  these  rules  having 
for  their  purpose  to  ensure  that  the  power  will  be  exercised 
in  a  uniform  and  consistent  manner  and  with  such  limita- 

72 


THE  TWO  TYPES  OF  GOVERNMENT          73 

tions  in  respect  to  procedure  as  will  result  in  a  just  and  equal 
treatment  of  all  citizens  in  their  relations  to  each  other  and 
to  the  government.  According  as  one  or  the  other  of  these 
two  methods  of  exercising  sovereignty  is  employed,  a  dis- 
tinct type  of  government  is  established.  This  distinction  is 
that  between  a  Government  of  Authority  and  a  Government 
of  Law.  Under  the  first  the  only  sanction  required  for  a 
governmental  act  is  the  will  of  the  ruler.  Under  the  second, 
every  act  must  have  the  sanction  of  some  law.  This  means 
that  in  the  case  of  the  second  there  must  exist  a  great  body 
of  public  law  prescribing  the  form  of  governmental  machin- 
ery, the  jurisdiction  and  powers  of  its  several  organs  and 
the  methods  of  procedure  to  be  employed  by  them. 

Absolute  and  Limited  Autocracies.—  It  needs  but  the 
statement  of  this  distinction  to  make  known  that  we  have 
here  to  deal  with  a  factor  that  has  played  an  all-important 
part  in  the  very  progress  of  civilization  itself,  and  that  in  it 
we  have  a  prime  characteristic  differentiating  the  civiliza- 
tions and  political  systems  of  the  East  and  the  West.  Gen- 
erally speaking,  it  may  be  said  that,  until  the  last  half  of  the 
nineteenth  century,  the  governments  of  the  East  have  been 
governments  of  the  first  class  —  Governments  of  Authority. 
Sovereignty  not  only  resided  in  the  hands  of  a  supreme 
ruler,  but  was  exercised  by  him  in  a  purely  personal,  arbi- 
trary manner.  The  governments  resulting  were  pure  Des- 
p'otisms.  WThether  they  were  or  were  not  benevolent 
Despotisms  depended  upon  the  accidental  circumstances  as 
to  whether  the  ruler  for  the  time  being  exercised  his  sov- 
ereign power  for  the  purpose  of  promoting  the  welfare  of 
his  subjects  or  with  a  view  solely  to  the  gratification  of  his 
own  caprices  and  ambitions.  China,  prior  to  the  revolution 
of  1911,  establishing  the  present  republic,  represents  prob- 
ably the  best  illustration  of  a  government  of  this  type.  One 


74     THE  GOVERNMENT  OF  MODERN  STATES 

should  read  such  books  as  Bland  and  Backhouse's  "  Annals 
and  Memoirs  of  the  Court  of  Peking,"  and  "  China  under 
the  Empress  Dowager,"  to  see  what  a  government  of  this 
kind  is  like.  The  monarch  issued  orders,  termed  mandates, 
prescribing  governmental  organization  and  procedure. 
These,  however,  were  not  laws  in  any  proper  jurisprudential 
sense.  They  were  habitually  disregarded;  they  lacked  any 
adequate  penalty  or  sanction;  they  did  not  bind  the  sov- 
ereign himself  and  were  changed  or  departed  from  by  him 
at  his  will.  In  substance  and  in  form,  they  were  for  the 
most  part  mere  exhortations  such  as  a  father  might  give  to 
his  child.  China  in  fact  may  be  deemed  to  have  been  at  that 
time  a  country  without  law,  public  or  private.  Officers 
and  magistrates,  in  discharging  their  duties  and  in  rendering 
decisions  for  the  settlement  of  private  disputes,  were  guided 
primarily  by  what  they  thought  the  particular  circumstances 
of  each  case  demanded,  rather  than  the  enforcement  of  any 
general  rules  of  conduct.  The  very  conception  of  law  was 
absent  and  indeed  is  at  the  present  time  largely  lacking. 
Authority  was  enforced  and  justice  administered  precisely  in 
the  manner  that  the  head  of  a  family  with  us  regulates  and 
controls  the  conduct  of  his  children.  The  people  were  ex- 
horted to  practice  virtue  and  to  refrain  from  evil.  Re- 
wards were  promised  for  good  conduct  and  punishment 
threatened  for  misconduct,  but,  only  in  the  most  loose  and 
uncertain  way  were  general  rules  with  clearly  prescribed 
sanctions  laid  down,  or,  if  laid  down,  enforced  with  any  uni- 
formity or  certainty. 

We  have  described  conditions  in  China  prior  to  the  revo- 
lution of  1911  with  some  degree  of  particularity,  since  doing 
so  not  only  serves  to  make  known  in  a  concrete  way  the 
essential  character  of  a  Government  of  Authority,  but  lays 
the  basis  for  a  correct  understanding  of  the  real  significance 


. 


THE  TWO  TYPES  OF  GOVERNMENT          75 

of  a  movement  such  as  that  of  the  revolution  of  1911.  To 
the  world  at  large  and,  indeed,  to  no  small  extent,  to  the 
Chinese  themselves,  the  significance  of  this  revolution  lay  in 
the  substitution  of  a  republican  for  a  monarchical  form  of 
government.  This,  however,  represents  a  total  misconcep- 
tion of  the  significance  of  that  event.  The  really  funda- 
mental change  there  sought  to  be  effected  was  that  of  the 
substitution  of  a  Government  of  Law  for  one  of  Authority. 
That  the  Government  of  Law  that  it  was  sought  to  establish 
was  of  a  republican  rather  than  a  monarchical  form  was, 
relatively  speaking,  a  matter  of  secondary  importance.1 
What  is  true  of  China's  revolution  of  1911  is  equally  true 
of  the  revolution  which  gave  to  Japan  her  present  form  of 
government  and  of  the  abortive  revolutions  of  Turkey  and 
Persia.  The  change  that  took  place  in  the  government  of 
Japan  was  no  less  momentous  because  she  retained  not  only 
the  monarchical  but  the  autocratic  form  of  government. 
The  really  important  feature  of  that  change  was  that  she 
passed  from  a  Government  of  Authority  to  one  definitely  of 
Law.  In  doing  so,  she  inaugurated  a  movement  which  bids 
fair  in  time  to  bring  the  governments  of  the  East  into  the 
same  class  in  this  respect  as  the  governments  of  the  West.1 
Absolute  and  Limited  Popular  Governments. —  Thus 
far  we  have  considered  this  vital  distinction  between  a  Gov- 
ernment of  Authority  and  one  of  Law  in  respect  to  the  auto- 
cratic type  of  government  only.  Though  less  clearly  in 
evidence,  it  is  of  importance  to  note  that  the  same  distinc- 
tion inheres  in  the  popular  type.  Popular  Government,  if 
it  is  to  prove  workable  at  all,  means  in  the  last  analysis  a 

1  The  foregoing  serves  also  to  bring  out  the  essential  difference  be- 
tween revolutions  having  for  their  purpose  the  overthrow  of  authori- 
ties in  the  control  of  a  government,  and  those  having  for  their  purpose 
the  overthrow  of  the  government  itself,  and  the  substitution  in  its  place 
of  a  government  of  a  different  character. 


76     THE  GOVERNMENT  OF  MODERN  STATES 

government  by  a  majority.  This  means  that  a  majority  of 
the  citizen  electorate,  no  less  than  an  individual  autocrat, 
may,  if  it  so  minded,  use  its  sovereign  powers  in  a  capricious, 
inconsistent  and  arbitrary  manner;  and,  in  doing  so,  have 
regard  solely  to  its  own  wishes  and  interests,  and  be  guilty 
of  grave  acts  of  oppression  and  injustice  towards  the  minor- 
ity. It,  like  the  individual  autocrat,  has  the  choice  of  decid- 
ing whether  it  will  regulate  its  acts,  according  to  its  wishes 
for  the  moment  and  the  conditions  surrounding  each  act  to 
be  performed,  or  will  lay  down  general  rules  by  which  its 
action  will  be  controlled  and  by  which  due  safeguards  will 
be  set  up  for  the  protection  and  promotion  of  the  interests  of 
all  citizens,  rather  than  those  of  the  majority  who  happen  to 
be  in  authority.  Nor  is  the  danger  slight  that  the  former  of 
these  two  methods  will  be  employed.  It  has  often  been 
pointed  out  that  no  tyranny  exceeds  that  of  a  majority.  In 
the  case  of  a  majority  there  is  present  an  apparent  justifica- 
tion for  its  acts  that  does  not  exist  in  the  case  of  an  autocrat 
who  represents  the  extreme  case  of  a  minority.  When  one 
considers  the  extent  to  which  the  populations  of  modern 
states  are  not  homogeneous  in  respect  to  race  or  religion, 
have  distinct  or  even  opposing  interests,  such  as  exists  in 
the  agricultural  as  opposed  to  the  industrial  class,  or  the 
employing  and  the  employee  class,  or  occupying  different 
sections  of  territory  with  their  particular  and  special  inter- 
ests, we  can  appreciate  how  serious  is  the  question  here 
presented. 

It  is  not  our  intention  at  this  place  to  consider  the  general 
problem  of  Popular  Government.  It  is  only  desired  to 
point  out  that  a  Popular  Government,  no  less  than  an 
Autocracy,  must  make  provision  for  the  conduct  of  all  gov- 
ernmental operations  strictly  in  accordance  with  law,  if  it 
is  not  to  present  all  the  evils  of  tyranny  that  have  marked 


THE  TWO  TYPES  OF  GOVERNMENT          7^7 

the  absolute  Autocracies  or  Despotisms  of  the  past.  That 
this  is  so  is  evidenced,  not  only  by  the  conditions  which 
prevailed  in  France  following  its  Revolution  of  1789,  but 
by  conditions  now  obtaining  in  Russia. 

Constitutional  Government. —  We  have  indicated  that 
the  distinction  between  a  Government  of  Authority  and  one 
of  Law  constitutes  one  of  the  most  fundamental  distinctions 
in  political  science.  It  is-now  our  purpose  to  show  that,  in 
this  distinction,  we  have  the  only  really  valid  basis  for  dis- 
tinguishing between  what  is  popularly  known  as  Constitu- 
tional Government  and  one  not  having  that  character. 

The  question  as  to  what  constitutes  Constitutional  Gov- 
ernment has  been  a  favorite  one  with  writers  in  politics  and 
jurisprudence.  Notwithstanding  the  attention  that  has  been 
given  to  the  subject,  it  must  be  said  that  today,  not  only  is 
there  no  general  agreement  regarding  it,  but  that  the  ideas 
of  individual  writers  are,  upon  close  examination,  found  to 
be  exceedingly  vague.  In  so  far  as  any  test  at  all  as  to  what 
constitutes  Constitutional  Government  has  been  attempted  to 
be  set  up,  it  has  centered  around  the  question  of  the  guar- 
antee of  individual  rights  and  liberties. 

Probably  the  ablest  spokesman  of  this  school  is  President 
Wilson.  In  his  book  "  Constitutional  Government  in  the* 
United  States  "  he  attempted  to  handle  this  specific'  ques- 
tion of  what  constitutes  Constitutional  Government.  In  his 
introductory  chapter  entitled  "  What  is  Constitutional  Gov- 
ernment ?  "  he  says : 

"  A  Constitutional  Government  is  one  whose  powers  have 
been  adapted  to  the  interests  of  the  people  and  to  the  mainte- 
nance of  individual  liberty.  .  .  .  Roughly  speaking  Consti- 
tutional Government  may  be  said  to  have  had  its  rise  at 
Runnymeade  when  the  barons  of  England  exacted  the 
Magna  Charta  of  John." 


78      THE  GOVERNMENT  OF  MODERN  STATES 

Though  devoting  a  chapter  to  the  subject  this  is  the  near- 
est that  he  got  to  stating  what  in  his  opinion  was  the  real  test 
of  Constitutional  Government.  His  reference  to  individual 
liberty,  to  the  charter  of  rights  exacted  of  King  John,  and 
his  general  consideration  of  the  subject,  show  clearly,  how- 
ever, that  with  him  the  protection  of  individual  liberty  is 
the  determining  factor. 

This  attempt  to  make  the  guarantee  of  individual  rights  a 
test  of  Constitutional  Government  is  a  futile  one.  For  ex- 
ample, it  would  be  absurd  to  hold  that  England  did  not  have 
a  Constitutional  Government.  Yet  that  nation  happens  to 
be  one  in  which  there  is  not  a  vestige  of  legal  guarantee  of 
individual  liberties  and  rights.  The  prime  characteristic 
of  the  English  government  is  the  supremacy  of  parliament. 
There  is  no  act  which  this  body  cannot  legally  authorize.  It 
can  by  simple  act  order  the  property  of  A  to  be  taken  from 
him  and  given  to  B,  divorce  the  wife  of  A  and  order  that  she 
shall  be  deemed  to  be  the  wife  of  B,  order  the  arrest  of  A 
and  his  execution  without  trial  and  for  an  act  which  at  the 
time  it  was  committed  was  not  only  legal  but  praiseworthy. 
As  its  power  has  been  wittily  expressed,  it  can  do  anything 
but  make  a  man  a  woman  or  a  woman  a  man.  It  is  true 
that  there  are  certain  charters  and  acts,  such  as  the  Magna 
Charta,  Petition  of  Rights  and  Bill  of  Rights,  in  which  the 
rights  of  individuals  are  deemed  to  be  set  forth  with  peculiar 
solemnity.  Legally,  however,  these  documents  have  no 
greater  force  than  that  of  the  most  petty  statute.  Whether 
they  are  observed  or  not  is  purely  a  matter  of  expediency. 
The  attempt  to  make  the  guarantee  of  individual  rights  a  test 
of  Constitutional  Government,  thus,  leads  either  to  the  con- 
clusion that  all  governments,  except  Absolutisms,  are  Con- 
stitutional Governments,  or  that  the  only  government  that  is 
constitutional  is  one  like  that  of  the  United  States,  where  the 


THE  TWO  TYPES  OF  GOVERNMENT          79 


field  of  individual  liberties  into  which  the  government  cannot 
enter  is  clearly  defined,  and  means  exist  for  insuring  that 
these  limitations  upon  the  power  of  government  will  in  fact 
be  observed.  In  point  of  fact  the  important  distinction 
which  lies  back  of  all  this  discussion  as  to  what  constitutes 
Constitutional  Government,  is  the  one  which  we  have  been 
considering,  that,  namely,  between  a  Government  of  Author- 
ity and  one  of  Law.  Here  is  a  distinction  which  is  not  only 
of  the  most  vital  importance,  but  one  which  can  be  clearly 
drawn,  and  which,  when  applied,  serves  to  mark  off  govern- 
ments of  the  world  into  two  classes  which  are  organically 
and  fundamentally  different  from  each  other.  Under  this 
distinction,  the  goyernments  of  the  United  States,  England, 
France,  Germany,  etc.,  properly  fall  into  one  class,  while 
those  of  Oriental  Despotisms  fall  into  another.  In  Russia 
we  have  an  example  of  a  government  which  may  be  said  to 
have  not  yet  found  itself.  Though  nominally  falling  in 
the  first  class,  it  in  fact  has  not  yet  succeeded  in  emancipat- 
ing itself  wholly  from  methods  of  action  characterizing 
the  second  class  from  which  it  has  been  slowly  evolving. 


CHAPTER  V 

THE  TWO  TYPES   OF   POPULAR   GOVERNMENT,    DEMOCRACY 
AND   REPRESENTATIVE    GOVERNMENT 

Sovereignty,  we  have  seen,  constitutes  not  only  the  prime 
characteristic  of  the  State,  but  the  factor  in  accordance  with 
whose  location  and  manner  of  exercise  all  governments  can 
best  be  classified.  Continuing  to  use  this  factor  as  the 
basis,  or  principle,  of  classification,  it  will  be  found  that 
Popular  Governments  can  be  further  classified  in  two  dis- 
tinct types  according  to  the  decision  reached  in  respect  to 
the  body  or  organ  to  which  will  be  entrusted  the  actual  ex- 
ercise of  the  sovereign  powers  which  reside  in  the  people. 

Having  decided  to  create  a  government  of  a  popular  type, 
a  people  has  presented  to  it  the  alternative  of,  either  itself 
exercising  its  sovereign  powers,  or  of  entrusting  their  exer- 
cise to  an  agent  or  agents  to  be  selected,  instructed  and  con- 
trolled by  it.  According  as  it  adopts  one  or  the  other  of 
these  policies,  it  brings  into  existence  distinct  types  of 
Popular  Government  to  which  have  been  given  the  names  of 
Democracy  and  Representative  Government. 

Definition  of  Democracy. —  The  word  "Democracy" 
is  unfortunately  used  in  popular  discussion,  and  indeed  in 
much  political  literature,  in  two  quite  different  senses:  as 
designating  a  society  or  community  in  which  class  distinc- 
tions are  absent  or  relatively  unimportant,  and  as  designat- 
ing a  distinct  form  of  government.  It  is  in  the  latter,  or 
technical,  sense  that  the  term  is  here  employed.  A  Democ- 
racy, to  repeat  more  fully  what  has  already  been  said,  is 

80 


* 


TWO  TYPES  OF  POPULAR  GOVERNMENT      81 

that  form  of  Popular  Government  which  results  where  the 
voters  of  a  State,  acting  collectively  as  an  electorate,  them- 
selves, directly  administer  the  affairs  of  government.  By 
this  is  not  meant  that  they  perform  the  physical  work  of 
building  and  repairing  roads,  operating  schools,  administer- 
ing justice  in  the  courts,  etc.,  but  that  they,  as  an  electorate, 
attempt  directly  to  determine  all  matters  of  policy,  reach  all 
important  decisions,  and  select,  direct  and  supervise  the 
officers  under  whose  immediate  direction  the  actual  work 
of  government  is  performed ;  that  they,  in  a  word,  directly 
assume  the  functions  of  a  legislature  and  a  board  of  di- 
rectors in  respect  to  the  conduct  of  governmental  affairs. 
Under  this  form  of  government  the  electorate  occupies,  in 
a  Popular  Government,  precisely  the  position  of  the  monarch 
in  an  Absolutism.  It  is  at  once  the  custodian  of  legal  sov- 
ereignty and  the  directing  head  for  its  actual  exercise. 

Inherent  Limitations  of  Democracies. —  It  is  hardly 
necessary  to  point  out  that  a  Democracy  may  be  said  to 
correspond  to  the  highest  ideal  of  Popular  Government.  It 
represents  a  form  of  government  in  which  sovereignty  not 
only  resides  in  the  people,  but  is  actually  exercised  by  them. 
Notwithstanding  this  theoretical  superiority,  Democracy, 
as  a  form  of  government,  presents  certain  practical  limita- 
tions that  make  it  difficult  of  application,  except  under  un- 
usual and  specially  favorable  conditions.  These  limita- 
tions consist:  in  the  difficulty  in  securing  prompt  and  de- 
cisive action  on  the  part  of  a  numerous  body;  in  the  delay 
and  trouble  involved  in  getting  this  body  together;  in  the 
impossibility  of  this  body  meeting  the  demands  upon  it, 
where  the  amount  of  work  to  be  done  is  at  all  large;  and  in 
the  fact  that  such  a  body  neither  has  the  knowledge  nor 
the  training  fitting  it  to  handle  matters  of  a  special  or 
technical  character,  and  is  necessarily  so  constituted  that  it 


/i 


82     THE  GOVERNMENT  OF  MODERN  STATES 

can  devote  but  a  part  of  its  energies  to  the  work  to  be  done. 

These  disadvantages  are  technical  and  apparent.  There 
is,  however,  another  which,  though  more  subtile,  is  none  the 
less  of  importance.  This  consists  in  the  fact  that,  in  a 
Democracy,  the  actual  conduct  of  governmental  affairs  is  in 
the  hands  of  those  possessed  of  absolutely  unlimited  pow- 
ers. All  the  dangers  which  we  have  described  as  inhering 
in  Popular  Government,  arising  from  the  fact  that  that  form 
of  government  means  government  by  a  majority,  are  thus 
present  in  an  acute  form  in  a  Democracy.  At  its  best  a 
Democracy  may  represent  the  ideal  form  of  government. 
At  its  worst,  it  may  be  little  better  than  mob  rule. 

Due  to  these  limitations  and  dangers,  Democracy,  as  a 
form  of  government,  has  played  but  little  part  in  the  history 
of  government.  The  only  instances  where  it  has  achieved 
a  fair  degree  of  success  are  those  furnished  by  certain  of 
the  States  in  ancient  Greece,  by  the  smaller  forest  cantons 
of  Switzerland,  and  the  towns  of  New  England  in  our 
own  country.  In  respect  to  all  of  these,  it  will  be  noted 
that,  not  only  were  all  of  the  special  conditions  which  we 
have  mentioned  as  being  necessary  for  the  successful  opera- 
tion of  a  Democracy  present,  but  that,  if  we  except  the 
Grecian  Democracies,  which  were  little  more  than  City 
States,  the  attempt  was  not  made  to  apply  this  type  to  the 
entire  government  of  a  State  but  only  to  certain  of  its 
minor  subdivisions.  Furthermore  it  is  to  be  also  noted 
that,  even  in  these  cases,  the  experiment  has  been  aban- 
doned or  is  in  process  of  abandonment.  The  Greek  Democ- 
racies are  no  more,  and  the  history  of  the  Swiss  cantons 
and  the  New  England  towns  during  recent  years  shows 
that  they  are  steadily  abandoning  their  democratic  prin- 
ciples, and  passing  to  the  representative  or  mixed  demo- 
cratic-representative type  of  government.  For  this  change, 


TWO  TYPES  OF  POPULAR  GOVERNMENT      83 


the  great  increase  in  the  demands  made  upon  the  govern- 
ment of  all  communities,  which  has  been  a  characteristic 
feature  of  modern  political  life,  is  chiefly  responsible. 

If  we  attempt  now  to  sum  up  the  result  of  our  critical 
consideration  of  Democracy  as  a  form  of  government,  we 
may  say  that,  notwithstanding  the  attractiveness  of  the  idea 
underlying  it,  it  is  a  form  of  government  which,  due  to 
inherent  limitations,  can  be  applied  with  success  only  under 
certain  special  conditions.  Whenever  the  territory  is  large, 
the  population  numerous,  the  interests  varied,  the  functions 
of  government  complicated,  or  the  people  not  of  a  high  de- 
gree of  intelligence  and  exceptional  political  capacity,  a 
pure  Democracy  may  be  deemed  to  be  unworkable.  Under 
modern  conditions  at  least  Democracy  may  thus  be  deemed 
to  be  a  form  of  government  that  will  find  a  place  only  for 
the  administration  of  the  purely  local  affairs  of  specially 
favored  communities.  Even  here  it  is  doubtful  whether 
the  results  secured  will  be  superior  to  those  that  could  be 
obtained  where  use  is  made  of  the  representative  form  of 
government. 

Representative  Government. —  The  foregoing  rather 
lengthy  consideration  of  the  limitations  of  Democracy  has 
been  essential  in  order  that  we  might  see  clearly  the  reasons 
why,  as  a  matter  of  fact,  it  has  given  way  to  the  alternative 
form  of  Popular  Government,  known  as  Representative 
Government. 

A  Representative  Government,  we  have  seen,  is  that  form 
of  government  which  results  where  a  legally  sovereign 
electorate,  instead  of  itself  attempting  to  act  as  the  direct- 
ing head  of  the  machinery  of  government,  brings  into 
existence  an  organ  or  organs  to  represent  and  act  for  it  in 
this  capacity.  The  discovery,  or  rather  the  application,  of 
this  principle  of  representation  to  the  management  of  the 


84      THE  GOVERNMENT  OF  MODERN  STATES 

affairs  of  the  State  is  rightly  deemed  to  mark  one  of  the 
greatest  advances  that  has  been  made  in  all  time  in  the 
art  of  government.  Without  it,  as  will  shortly  appear,  the 
present  great  extension  of  Popular  Government  would  have 
been  impossible,  and  the  doctrine  of  popular  sovereignty 
would  probably  have  remained  but  the  dream  of  philoso- 
phers, incapable  of  realization  in  practice.  It  was  in  the 
perfection  of  the  means  through  which  this  principle  could 
be  practically  applied,  as  much  as  in  her  insistence  upon 
the  recognition  of  individual  liberties,  and  the  provision 
of  effective  means  for  their  protection,  that  England  made 
her  great  contribution  to  the  principles  and  art  of  govern- 
ment. 

In  studying  this  form  of  government,  it  is  well  to  con- 
sider it  from  two  points  of  view :  as  a  device  by  which  the 
principles  of  Popular  Government  can  be  applied  to  large 
populations  and  extensive  territories ;  and  as  involving  a 
principle  of  government  essentially  different  from  that  un- 
derlying Democracy. 

As  a  device,  it  is  evident  that  it  meets  most,  if  not  all,  of 
the  technical  limitations  which  we  have  seen  prevent  the 
successful  operation  of  a  Democracy,  except  in  the  case 
of  small  communities  with  relatively  simple  governmental 
problems  to  be  met.  Once  adopt  the  principle  of  a  small 
number  of  officials  being  selected  by  a  large  body  to  act  for 
it,  and  all  barriers  which  size  of  country  or  amount  of 
population  had  seemed  to  oppose  to  the  spread  of  Popular 
Government  at  once  disappear. 

Representative  Government,  however,  differs  from  a 
Democracy  in  a  far  more  important  respect  than  is  repre- 
sented by  this  mechanical  feature.  Fundamentally  it  is 
based  on  the  principle  that,  though  sovereign  authority  re- 
sides in  the  people,  the  latter  are  incompetent  to  exercise 


TWO  TYPES  OF  POPULAR  GOVERNMENT      85 

it,  except  in  the  most  general  way.  Representative  Gov- 
ernment draws  a  clear  distinction  between  the  possession  of 
sovereignty  and  its  exercise.  The  former,  it,  in  common 
with  Democracy,  claims  resides  in  the  people;  the  latter 
it  maintains  should  reside  in  officers  specially  selected  on 
account  of  their  qualifications  for  that  work.  Essentially 
the  advocates  of  Representative  Government  take  the  posi- 
tion that  the  conduct  of  the  affairs  of  government  require 
a  high  degree  of  education,  special  knowledge  and  skill, 
and  that  it  should  be  consequently  undertaken  by  officers 
specially  selected  for  that  work. 

It  is  impossible  to  lay  too  great  stress  upon  these  two 
fundamentally  different  points  of  view.  Advocates  of 
Democracy  say  that  the  people  are  not  only  competent, 
but  can  be  trusted  to  exercise  a  wise  and  just  discretion  in 
making  political  determinations.  Advocates  of  Repre- 
sentative Government  deny  this.  They  maintain  that,  un- 
der modern  conditions  at  least,  decisions  in  respect  to  mat- 
ters of  legislation  and  administration,  if  they  are  to  be 
wise,  must  rest  upon  a  special  study  of  conditions  that  is 
possible  only  by  a  relatively  small  body  of  officers  special- 
izing on  this  work.  Their  position,  in  a  word,  is  that  the 
co  iduct  of  governmental  affairs  is  a  special  work  requiring 
special  abilities,  training  and  knowledge,  and  therefore  one 
to  be  performed  by  a  special  body  having  these  special 
qualifications. 

This,  however,  is  not  their  whole  case.  They  lay  great 
stress  upon  the  dangers,  which  we  have  seen  inhere  more 
markedly  in  a  Democracy  than  in  other  forms  of  Popular 
Government,  that  a  dominant  majority  will  use  its  power 
in  an  arbitrary,  tyrannical,  capricious  and  oppressive  man- 
ner. A  Democracy  acts  with  full  powers;  there  is  no 
check  upon  its  action;  there  is  no  authority  to  which  it  is 


86      THE  GOVERNMENT  OF  MODERN  STATES 

responsible,  or  by  which  it  can  be  held  to  account.  Po- 
litical authorities  in  a  Representative  Government  have  the 
scope  of  their  functions  and  powers  defined,  and  the  man- 
ner of  their  exercise  determined.  They  work  under  a 
sense  of  responsibility  and  accountability.  Occupying,  as 
they  do,  a  special  position,  they  can  view  the  problems 
presented  and  the  results  likely  to  flow  from  particular  lines 
of  action,  in  a  more  detached  manner. 

Mixed  or  Democratic-Representative  Government. — 
In  the  foregoing  we  have  defined  and  described  what  may 
be  termed  a  pure  Democracy  and  a  pure  Representative 
Government.  In  practice  a  people  may  adopt  a  system  of 
government  lying  midway  between  these  two  systems.  It 
may  thus  decide  to  vest  the  exercise  of  certain  of  its  powers 
in  representative  organs  and  retain  the  exercise  of  the  re- 
mainder in  its  own  hands.  When  it  decides  to  do  this,  it 
brings  into  existence  a  government  of  a  mixed  type  to 
which  we  may  give  the  designation  Democratic-Representa- 
tive. 

The  Government  of  England  the  Purest  Example  of 
a  Representative  Government. —  Of  all  governments  that 
of  England  represents  the  purest  type  of  Representative 
Government  that  has  ever  been  established.  The  people 
of  England  have  vested  the  entire  exercise  of  their  sovereign 
powers  in  a  single  agency,  Parliament.  That  agency  rep- 
resents them  in  every  capacity.  The  people  themselves  per- 
form no  political  act  but  that  of  selecting  the  members  of 
this  body.  They  do  not  even  attempt,  through  their  po- 
litical parties,  or  otherwise,  formally  to  instruct  their  agent 
as  to  what  policies  it  shall  adopt  or  what  measures  it  shall 
undertake.  Nor  have  they  retained  in  their  hands  the 
constituent;  that  is,  the  constitution  determining  power  as 
distinguished  from  the  legislative  power.  The  grant  of 


TWO  TYPES  OF  POPULAR  GOVERNMENT      87 


authority  to  Parliament  is,  in  a  word,  plenary.  The  gov- 
ernment resulting  may  thus  be  said  to  be  as  pure  a  type  of 
Representative  Government  as  it  is  possible  to  conceive. 

The  Government  of  the  United  States  a  Representa- 
tive Government  in  Principle. —  The  distinction  between 
a  Democracy  and  a  Representative  Government  was  clearly 
understood  by  the  framers  of  our  constitution.  Due  to 
their  appreciation  of  the  dangers  which  they  believed  to 
be  inherent  in  the  former  type,  rather  than  to  the  technical 
difficulties  in  the  way  of  making  that  type  work  success- 
fully, they  took  every  possible  precaution  to  insure  that 
the  government  they  were  creating  should  be  a  Representa- 
tive Government,  and  not  a  Democracy.  They  were  as 
anxious  to  avoid  the  dangers  of  a  Democracy  as  they  were 
those  of  an  Autocracy.  To  them  Democracy  meant  mob 
rule,  and  was  so  denominated  in  their  political  discussions. 
That  this  is  so  is  clearly  shown  from  the  care  taken  by 
Madison  to  point  out  in  the  Federalist  Papers  the  distinc- 
tion between  the  two  types  of  government,  and  the  conse- 
quences to  be  expected  in  the  practical  working  of  the  two 
types.  He  there  wrote : 

From  this  view  of  the  subject  it  may  be  concluded  that  a  pure 
Democracy,  by  which  I  mean  a  society  consisting  of  a  small  number 
of  citizens,  who  assemble  and  administer  the  government  in  person, 
can  admit  of  no  cure  for  the  mischief  of  a  faction  (party  strife). 
A  common  passion  or  interest  will  in  almost  every  case,  be  felt  by 
a  majority  of  the  whole;  and  communication  and  concert  result 
from  the  form  of  government  itself;  and  there  is  nothing  to  check 
the  inducements  to  sacrifice  the  weaker  party  or  an  obnoxious  in- 
dividual. Hence  it  is  that  such  Democracies  have  ever  been  spec- 
tacles of  turbulence  and  contention ;  have  ever  been  found  incom- 
patible with  personal  security  or  the  rights  of  property;  and  have 
in  general  been  as  short  in  their  lives  as  they  have  been  violent  in 
their  deaths. 


88      THE  GOVERNMENT  OF  MODERN  STATES 

Theoretic  politicians,  who  have  patronized  this  species  of  govern* 
ment,  have  erroneously  supposed  that  by  reducing  mankind  to  a 
perfect  equality  in  their  political  rights,  they  would  at  the  same 
time  be  perfectly  equalized  and  assimilated  in  their  possessions, 
their  opinions  and  their  positions.  A  Republic,  by  which  I  mean  a 
government  in  which  the  scheme  of  representation  takes  place, 
opens  a  different  prospect  and*  promises  the  cure  for  which  we  are 
seeking.  .  .  . 

The  two  great  points  of  difference  between  a  Democracy  and  a 
Republic  are:  first,  the  delegation  of  the  government  in  the  latter 
to  a  small  number  of  citizens  elected  by  the  rest;  secondly,  the 
greater  number  of  citizens  and  greater  sphere  of  country  over 
which  the  latter  may  extend.1 

Not  only  did  the  framers  of  our  constitution  desire  to 
ensure  that  the  national  government  they  were  bringing 
into  existence  should  be  of  this  character,  but  that  the 
governments  of  the  individual  states  should  be  the  same. 
It  is  for  this  reason  that,  notwithstanding  the  strong  feel- 
ing that  the  power  of  the  central  government  should  be 
restricted  within  the  narrowest  limits  compatible  with  the 
formation  of  a  strong  and  permanent  union  and  that,  as 
far  as  possible,  each  state  should  be  left  the  maximum  of 
freedom  in  the  management  of  its  own  political  affairs,  they 
placed  in  the  federal  constitution  the  provision  that  "  the 
United  States  shall  guarantee  to  every  state  in  this  Union  a 
republican  form  of  government.2 

1  The  Federalist,  No.  10. 

2  Art.  IV,  Sec.  4.    The  expression  "  republican  form  of  government  * 
is  here  used  to  indicate  that  type  of  Representative  Government  where 
the   chief   magistrate   is    elected   by   the   people.    The   provision   thus 
equally  precludes  the  establishment  by  a  state  of  either  a  Monarchy 
or  a   Democracy.    This  provision  not  only  imposed  upon  the  states 
the  obligation  to  adopt  this  form  of  government,  but  likewise  placed 
the  obligation  upon  the  national  government  to  see  that  this  was  done. 
On  one  notable  occasion,  that  of  Dorr's  Rebellion  in  Rhode  Island,  the 
national  government  was  forced  to  intervene  to  enforce  this  provision. 


TWO  TYPES  OF  POPULAR  GOVERNMENT      89 

The  Contest  Between  the  Principles  of  Democracy 
and  Representative  Government  in  the  United  States. — 

Though  no  one  can  question  that  the  government  of  the 
United  States  is  properly  to  be  designated  a  Representa- 
tive Government,  it  is  important  to  note  that,  neither  in 
its  legal  constitution,  nor  in  its  practical  operation,  is  it 
so  pure  a  type  as  that  of  England.  In  the  first  place  the 
people  have  retained  to  themselves  the  final  decision  in 
respect  to  the  making  of  changes  in  the  government  set  up 
by  them.  Secondly,  they  have  built  up  a  system  of  party 
organizations  through  which  they  seek  by  means  of  the 
adoption  of  programs  to  make  known  their  wishes  in  re- 
spect to  the  policies  that  shall  be  adopted  and  put  into 
effect  by  their  representatives.  Finally,  during  recent  years 
there  has  developed  a  strong  movement  for  the  adoption 
of  the  political  devices  known  as  the  "  Initiative,"  "  Refer- 
endum "  and  "  Recall,"  through  which  the  people  may 
themselves  directly  make  political  determinations. 

If  one  surveys  the  history  of  politics  in  the  United  States 
since  the  adoption  of  the  constitution,  it  will,  in  fact,  be 
found  that  one  of  its  most  fundamental  features  has  been 
the  persistent  contest  between  the  democratic  and  repre- 
sentative principles  of  government.  The  political  revolt 
which  led  to  the  election  of  Jackson  as  President  in  1824 
was  essentially  one  having  for  its  purpose  the  strengthening 
of  the  direct  influence  of  the  people  on  the  conduct  of  gov- 
ernment. The  accomplishment  of  this  end  they  saw  in  the 
requirement  that  all  administrative  officers  of  any  impor- 
tance should  hold  office  as  the  result  of  direct  election  by  the 
people.  In  practice  this  system  utterly  failed  to  accomplish 
its  purpose.  The  people  found  it  an  impossible  task  to 
select  competent  officials  for  a  large  number  of  different 
positions,  many  of  them  of  a  purely  technical  character. 


90     THE  GOVERNMENT  OF  MODERN  STATES 

Control  instead  of  being  strengthened  was  weakened.  As 
a  result  there  has  been  in  recent  years  a  strong  reaction 
against  the  system.  This  finds  expression  in  the  demand 
for  the  adoption  of  what  is  known  as  the  "  Short  Ballot," 
that  is,  the  adoption  of  the  principle  that  only  the  relatively 
few  officials  having  distinctly  political,  i.e.,  policy-determin- 
ing, functions,  as  distinguished  from  purely  ministerial,  or 
administrative,  duties,  shall  be  elected  by  the  people,  and 
that  all  other  administrative  officials  shall  be  appointed  by 
them.  This  movement  has  the  support  of  almost  all  stud- 
ents of  politics  and  is  slowly  advancing. 

The  latest  phase  of  the  contest  between  the  principles  of 
Democracy  and  Representative  Government  is  the  move- 
ment already  mentioned  for  the  introduction  into  our  po- 
litical system  of  the  devices  known  as  the  Initiative,  Refer- 
endum and  Recall.  Certain  progress  has  been  made  in  this 
direction,  but  it  is  impossible  at  this  time  to  determine  the 
extent  to  which  these  devices  will  become  integral  parts  of 
our  political  machinery.  Manifestly  it  would  be  out  of 
place  to  attempt  here  to  consider  the  merits  and  demerits  of 
these  proposals.  They  have  been  mentioned,  however,  as 
illustrating  excellently  how  impossible  it  is  to  judge  po- 
litical proposals  unless  one  has  a  clear  conception  of  the 
fundamental  principles  involved. 


PART  III 

THE  ESTABLISHMENT  OF 
GOVERNMENTS 


CHAPTER  VI 

THE   FORMULATION   OF   CONSTITUTIONS 

In  the  preceding  pages  we  have  seen  that  a  people  desir- 
ing to  constitute  itself  a  State  has  to  make  certain  funda- 
mental decisions  before  it  can  proceed  to  the  work  of  creat- 
ing a  government  through  which  its  powers  as  a  State  shall 
be  exercised,  and  that,  according  as  one  or  another  decision 
is  reached,  a  distinct  type  of  government  results.  With 
these  questions  answered  there  is  then  presented  the  problem 
of  making  provision  for  the  actual  conduct  of  the  affairs 
of  the  State;  in  other  words,  the  establishment  of  a  govern- 
ment. 

Governments  Established  Through  the  Formulation 
of  Constitutions. —  The  means  employed  by  communities 
which  have  decided  to  constitute  themselves  as  States  in 
organizing  a  government  for  the  conduct  of  their  State, 
or  political  affairs  consists  in  the  formulation  of  a  definite 
set  of  principles  or  provisions  embodying,  or  setting  forth, 
the  fundamental  features  of  the  government  to  be  created. 
These  principles  or  provisions,  as  thus  formulated,  are 
collectively  known  as  the  constitution  of  the  State.  In 
describing  this  act  by  which  a  form  of  government  is  de- 
termined use  has  been  made  of  the  term  "  formulation  " 
instead  of  "  adoption,"  since  one  of  the  most  important 
features  of  any  political  system  consists  in  the  fact  that 
it  is  undergoing  constant  change.  This  change,  as  we  shall 
shortly  see,  takes  place  in  a  number  of  ways.  It  is  suffi- 
cient here,  however,  to  point  out  that  the  problem  of  the 

93 


94     THE  GOVERNMENT  OF  MODERN  STATES 

formulation  of  a  constitution  has  two  distinct  phases;  that 
of  the  adoption  of  a  constitution,  in  the  first  place;  and 
that  of  its  subsequent  modification,  as  changes  in  political 
ideas  or  conditions  take  place.  Each  of  these  phases  has 
its  own  particular  problems  which  will  have  to  be  separately 
considered. 

Written  and  Unwritten  Constitutions. —  In  all  cases, 
except  that  of  England,  these  fundamental  provisions  of 
the  governmental  system  are  set  forth  in  a  formal  docu- 
ment or  documents  which,  as  a  document,  is  styled  the  con- 
stitution. For  reasons  which  will  hereafter  appear,  Eng- 
land has  never  reduced  her  basic  political  provisions  to 
formal  written  form.  These  principles,  however,  are  none 
the  less  definitely  determined,  and  England,  for  this  reason, 
is  said  to  have  an  unwritten,  as  opposed  to  a  written,  con- 
stitution. In  the  past  great  stress  was  laid  upon  this  dif- 
ference in  practice  of  England  and  other  countries.  That 
important  consequences  flow  from  it  cannot  be  doubted. 
It  is  now  recognized,  however,  that,  in  the  case  of  all  coun- 
tries, there  are  many  fundamental  political  provisions  which 
are  not  set  forth  in  their  formal  constitutions  but  which 
none  the  less  must  be  deemed  to  be  of  a  constitutional 
character.  Of  no  country  is  this  more  true  than  of  the 
United  States,  which,  of  all  countries,  is  supposed  to  have 
a  peculiarly  inflexible  constitution.  Thus,  to  illustrate,  our 
constitution  makes  no  reference  to  such  important  political 
institutions  as  the  President's  Cabinet,  the  Congressional 
Caucus,  or  Political  Parties.  No  one  can  question,  how- 
ever, that  these  institutions  constitute  as  integral  parts  of 
our  political  machinery  as  almost  any  formally  provided 
for  in  the  written  constitution.  The  difference  between 
written  and  unwritten  constitutions  is  thus  one  of  degree 
as  well  as  kind.  The  most  important  fact,  from  the  stand- 


THE  FORMULATION  OF  CONSTITUTIONS      95 

point  of  the  study  of  government,  resulting  from  this  is 
that  only  a  very  imperfect  idea  can  be  obtained  of  the 
governmental  system  of  a  country,  as  it  actually  exists  and 
functions,  by  a  mere  study  of  its  written  constitution.  The 
constitution  considered  alone  is  a  dead,  inert  thing.  It 
is  this  which  makes  the  study  of  government,  seemingly  an 
easy  one,  in  fact  one  of  great  difficulty,  requiring  in  high 
degree  the  exercise  of  the  inquisitive  and  analytical  facul- 
ties. 

Methods  of  Establishing  Constitutions. —  We  have 
pointed  out  that  the  task  of  formulating  a  constitution  has 
two  distinct  phases ;  that  of  its  adoption  in  the  first  instance; 
and  that  of  its  subsequent  modification,  and  that  each  of 
these  phases  presents  special  questions  or  problems  requir- 
ing separate  consideration. 

If  we  analyze  the  problem  of  the  adoption  of  a  consti- 
tution in  the  light  of  history  it  will  be  found  that  modern 
States  have  acquired  their  constitutions  in  four  different 
ways:  (i)  by  grant;  (2)  by  deliberate  creation;  (3)  by  a 
process  of  gradual  evolution;  and  (4)  by  revolution. 

Establishment  of  .Constitutions  by  Grant. —  Histori- 
cally, most  modern  States  began  their  careers  as,  or  speed- 
ily became,  in  effect,  Autocracies.  The  adoption  of  sys- 
tems under  which  the  governmental  organization  and  the 
exercise  of  governmental  powers  were  carefully  described 
and  defined  in  written  constitutions  is  a  distinctly  modern 
phenomenon.  It  dates  only  from  the  end  of  the  Eighteenth 
and  the  beginning  of  the  Nineteenth  Centuries.  In  the 
development  of  their  constitutional  systems  most  existing  ; 
States  have  therefore  had  to  start  from  the  point  where  all  / 
governmental  authority  was  vested  in  the  hands  of  their;' 
rulers  and  was  defined  only  in  a  most  general  way.  Under 
these  conditions,  the  first  and  simplest  method  by  which  a 


96      THE  GOVERNMENT  OF  MODERN  STATES 

State  may  become  endowed  with  a  constitution  is  that 
whereby  the  ruler  decides  that  the  interests  of  the  State 
and  of  its  citizens  require  that  the  organization  and  pow- 
ers of  the  government  and  its  several  agencies  shall  be 
carefully  set  forth  in  a  formal  document.  In  practically 
all  cases  this  has  meant  that  the  ruler  has  consented,  in  fact, 
if  not  in  theory,  to  surrender  his  position  as  an  autocrat, 
and  has  undertaken  to  exercise  his  powers  in  accordance 
with  certain  principles  and  through  certain  agencies  and 
procedure.  This  decision  he  has  put  into  execution  through 
the  promulgation  of  a  document  or  constitution  embodying 
these  principles  and  provisions  by  which  he  undertakes  to 
be  bound  in  the  future  exercise  of  his  political  powers. 
A  constitution  so  established  is  said  to  be  one  by  grant  or 
to  be  octroyed. 

It  is  immaterial,  from  the  standpoint  of  political  science, 
whether  the  ruler's  motive  in  doing  this  is  a  belief  that  the 
powers  of  government  and  the  manner  of  their  exercise 
should  be  defined  in  a  document  of  a  formal,  legal  char- 
acter, or  is  a  desire  to  avoid  the  consequences  that  might 
follow  should  he  refuse  to  do  so.  The  important  thing  is 
that  this  act  is  his  act.  When  a  government  is  established 
in  this  way  the  sovereign  ruler  acts  as  does  a  constitutional 
convention.  He  frames  the  constitution  that  shall  provide 
for  the  new  form  of  government,  adopts  it  and  promulgates 
it.  The  actual  drafting  of  the  constitution  may  be  per- 
formed by  some  other  body,  but  such  other  body  acts  merely 
as  his  agent  and  the  work  must  be  adopted  by  him  as  his 
own.  Legally  the  act  is  his  and  his  alone  and  it  is  his 
approval  that  gives  it  validity. 

Important  consequences  flow  from  this.  Of  these  the 
most  important  is  that  the  ruler  in  promulgating  the  consti- 
tution does  not  thereby  divest  himself  of  his  sovereign 


THE  FORMULATION  OF  CONSTITUTIONS      97 

power.  Sovereignty  continues  to  reside  in  him.  He 
merely  undertakes  to  exercise  this  power  in  the  manner  set 
forth  in  the  constitution  as  promulgated  by  him.  Legally, 
he  can,  at  any  time,  modify,  suspend  or  wholly  abolish  it. 
Actually,  however,  the  attempt  to  do  so  may  provoke  such 
discontent  on  the  part  of  his  subjects  that  he  will  only  make 
the  attempt  under  most  unusual  circumstances. 

In  point  of  fact,  most  constitutions  owing  their  origin 
to  this  method  of  establishment  have  been  granted  by  rulers 
as  the  consequence  of  demands  on  the  part  of  their  subjects 
which  they  have  found  it  impossible,  or.  impracticable,  to  re- 
sist. They  have  been  forced  from  rulers  as  the  direct  con- 
sequence of  threatened  revolutions. 

Of  modern  States  the  most  important  that  have  received 
their  constitutions  in  this  way  are  Japan,  Prussia,  Austria, 
and  indeed  most  of  the  European  Monarchies  with  the  ex- 
ception of  Belgium.  The  governments  of  these  states  are 
thus  still  Autocracies,  though  of  the  limited  instead  of 
the  absolute  type. 

Establishment  of  Constitutions  by  Deliberate  Crea- 
tion.—  A  second  method  by  which  a  constitution  may  be  es- 
tablished is  that  where  it  is  formulated  and  adopted  by  a 
people  at  the  time  that  it  erects  itself  into  a  State,  or 
immediately  following  that  act.  A  constitution  so  adopted 
may  be  said  to  be  adopted  by  deliberate  creation.  It  is 
hardly  necessary  to  point  out  that  opportunities  for  the 
establishment  of  States  and  the  adoption  of  a  constitution 
in  this  way  are  comparatively  rare.  It  can  only  occur 
where  a  community,  the  members  of  which  have  already  had 
a  political  experience,  emigrates  to  a  territory  the  inhabitants 
of  which,  if  any,  have  no  political  organization,  the  au- 
thority of  which  the  emigrants  are  willing  to  accept.  It  is 
indeed  doubtful  whether  any  instance  of  the  creation  of  a 


98      THE  GOVERNMENT  OF  MODERN  STATES 

sovereign  State  in  this  way  can  be  cited,  though  a  close 
approach  to  it  has  been  made  in  the  organization  of  govern- 
ments by  the  colonists  who  have  gone  out  from  England  for 
the  purpose  of  establishing  settlements  beyond  the  seas.  In 
all,  or  practically  all,  of  these  cases  the  persons  participat- 
ing in  the  enterprise  have,  however,  continued  to  recognize 
the  political  authority  of  the  mother  country.  Though  their 
action  has  been  analogous  to  that  of  the  creation  by  deliber- 
ate act  of  a  constitution  for  an  independent  State,  the  act 
itself  had  to  do  only  with  the  establishment  of  a  govern- 
ment for  the  conduct  of  local  affairs. 

At  the  present  time  the  most  interesting  example  of  the 
adoption  of  a  constitution  by  deliberate  creation  would  be 
afforded  should  the  Poles,  Czecho-Slovaks  and  Jugo-Slavs, 
as  the  result  of  the  present  war,  be  recognized  as  independ- 
ent States  and  be  permitted  to  organize  for  themselves  their 
own  forms  of  government. 

Establishment  of  Constitutions  by  a  Process  of  Grad- 
ual Evolution. —  A  third  method  by  which  a  constitution 
may  come  into  existence  is  that  whereby  a  State  secures 
its  form  of  government  as  the  result  of  slowly  working 
evolutionary  changes.  This  takes  place  where  a  State  starts 
with  an  autocratic  government,  and  gradually  secures  a  gov- 
ernment in  which  political  authority  is  deemed  to  reside 
in  the  hands  of  the  people.  This  transfer  of  the  seat  of 
sovereignty  usually  takes  place  in  this  way.  Originally 
both  the  possession  and  exercise  of  sovereignty  rests  in  the 
hands  of  the  ruler.  Gradually,  as  a  matter  of  fact,  though 
not  of  law,  the  power  of  determining  how  this  sovereign 
power  shall  be  exercised  passes  from  the  hands  of  the  ruler 
to  persons  selected  in  some  way  by,  or  at  least  claiming 
to  represent,  the  people.  In  time  what  was  at  first  mere 
a  de  facto  power  comes  to  be  looked  upon  as 


THE  FORMULATION  OF  CONSTITUTIONS      99 

power.  Long  acquiescence  in  the  determinations  of  these 
representatives  has  deprived  the  ruler  of  any  real  power 
to  act  counter  to  them  and  he  in  turn  accepts  the  new  prin- 
ciple of  sovereignty  as  the  de  jure  as  well  as  the  de  facto 
condition  of  affairs. 

The  leading,  if  not  the  only,  example  of  where  a  Rep- 
resentative Government  has  come  into  existence  through 
this  method  is  furnished  by  Great  Britain.  Certain  acts, 
such  as  that  of  the  election  of  William  of  Orange  as  King 
by  the  Parliament  in  1688,  may  constitute  decisive  steps 
in  this  evolution;  but  the  process  itself  has  been  one  of 
gradual  change  in  the  attitude  of  the  people  towards  their 
government  and  of  acquiescence  and  action  on  the  part  of 
their  rulers  in  this  change.  In  the  case  of  Great  Britain, 
not  only  has  this  change  been  a  gradual  one,  but  an  almost 
unconscious  one.  So  much  so  has  this  been  the  case  that 
•the  change  has  been  one  primarily  in  the  spirit  of  political 
practice  rather  than  in  the  form  of  action.  The  result  is 
a  political  system  in  which  the  government  as  a  matter  of 
form  and  mode  of  procedure  is  still  of  an  autocratic  char- 
acter, though  as  a  matter  of  fact  the  government  in  its 
practical  workings  is  as  thoroughly  a  Representative  Gov- 
ernment as  any  existing  in  the  world.  It  is  due  to  this 
fact  that  it  is  so  difficult  for  the  foreigner,  and  indeed  for 
the  Englishman  himself,  to  describe  or  understand  the  Eng- 
lish system  of  government.  Only  as  one  ignores  the  form 
and  attends  to  the  actual  workings  of  this  government 
can  its  essential  character  be  determined.  It  is  for  this 
reason  also  that  we  are  confronted  with  the  unique  phe- 
nomenon of  a  State  having  a  definite  form  of  Representa- 
tive Government  without  possessing  any  written  or  formu- 
lated body  of  supreme  law  corresponding  to  the  constitu- 
tional documents  of  other  countries. 


ioo     THE  GOVERNMENT  OF  MODERN  STATES 

It  is  quite  possible  that  by  an  analogous  gradual  change 
in  thought  and  action  States,  such  as  members  of  the  Ger- 
man Empire,  now  having  an  autocratic  government  but 
possessing  constitutions  representing  declarations  by  the 
sovereign  ruler  of  the  manner  in  which  they  will  exercise 
their  sovereign  powers  may  in  turn  become  States  with  a 
Representative  Government  and  the  constitutions  be  deemed 
to  rest  upon  the  authority  of  the  people,  though  originally 
acquired  by  way  of  grant  from  a  sovereign  ruler. 

It  should  also  be  noted  that  a  Representative  Government 
may  come  into  existence  as  the  result  of  evolution  from  a 
Democracy.  This  would  occur  where  the  people  of  a 
Democracy  find  that  it  is  impracticable  for  them  to  manage 
their  political  affairs  directly,  and  decide  that  it  is  pref- 
erable to  entrust  such  management  more  and  more  to 
agents  selected  by  them  to  represent  them  in  this  capacity. 
This  is  what  has  taken  place  in  recent  years  in  those  terri- 
torial subdivisions  of  the  Swiss  Republic  and  the  United 
States,  the  forest  cantons  of  the  former  and  the  towns  of 
New  England  of  the  latter,  which  attempted  at  the  start  to 
have  their  political  authority  exercised  directly  by  their 
electorates.  Steadily  this  democratic  practice  has  been  de- 
parted from  and  the  governments  of  these  communities  have 
assumed  more  and  more  a  representative  character. 

Establishment  of  Constitutions  by  Revolution.— A 
final,  and  much  more  usual,  method  by  which  a  constitu- 
tional system  is  established  is  that  by  revolution.  This  oc- 
curs when  a  people  living  under  an  Autocracy  becomes  dis- 
satisfied with  that  form  of  government  and  decides,  not- 
withstanding the  opposition  of  its  ruler,  to  establish  in  its 
place  a  government  resting  upon  the  principles  o£  popular 
sovereignty  and  Representative  Government.  This  is  the 
method  through  which  were  established  the  Representative 


THE  FORMULATION  O.F  CONSTITUTIONS      101 

Governments  of  the  First  French  Republic,  our  own  Re- 
public, the  present  Republic  of  China,  and  more  recently 
the  Soviet  Government  in  Russia. 

Dual  Character  of  Revolutions:  A  Revolt  Against 
Existing  Governmental  Conditions  and  a  Movement  to 
Establish  a  New  Type  of  Government. —  In  studying 
these  movements  whereby  a  change  in  the  form  of  govern- 
ment is  forcibly  brought  about  it  is  of  interest  to  note  that 
revolutions  present  two  distinct  phases  or  aspects.  They 
are  an  armed  protest  against  existing  misgovernment  or 
oppression  by  the  governing  authorities  and  an  assertion 
that  the  government,  purely  as  a  matter  of  political  theory, 
should  rest  upon  another  principle.  Neither  one  of  these 
motives  alone  seems  to  be  sufficiently  powerful  to  bring 
about  a  successful  revolt.  (History  furnishes  few  if  any 
instances  of  where  a  people,  having  little  to  complain  of  in 
the  way  of  misgovernment  or  oppression  by  their  political 
authorities,  have  overthrown  such  government  simply  be- 
cause they  had  become  persuaded  that  their  government,  as 
a  matter  of  political  theory,  should  rest  upon  a  different 
principle  as  regards  the  location  of  sovereignty.  On  the 
other  hand  it  is  equally  noteworthy  that  it  is  exceedingly 
difficult  to  rouse  a  people  to  revolt  against  an  existing  gov- 
ernment, once  firmly  established,  no  matter  what  the  de- 
gree of  misgovernment  and  oppression  to  which  they  may 
be  subjected,  until  they  have  been  persuaded  that  some 
great  principle  is  at  stake.  The  need  in  other  words  seems 
to  exist  that  a  revolutionary  movement  should  be  justified 
in  theory  as-  well  as  in  fact.  It  has  always  been  difficult 
on  the  part  of  many  to  understand  the  significance  that 
historians  have  attached  to  the  preachings  of  Voltaire, 
Rousseau  and  other  writers  of  the  Eighteenth  Century  in 
bringing  about  the  French  Revolution.  The  explanation  of 


102      .THE.  GOVERNMENT.  OF  MODERN  STATES 

this  is  found  in  this  characteristic  of  the  people  which  we 
are  considering.  These  writers  furnished  the  philosophical 
basis  for  the  revolution.  Not  until  a  justification  for  their 
action,  as  a  matter  of  theory  or  principle,  was  established, 
could  the  people  be  brought  to  the  point  of  the  united  action 
required  for  success. 

In  the  case  of  the  establishment  of  our  own  government, 
we  have  evidence  of  this  need  for  a  philosophical  justifica- 
tion of  the  act  of  revolt.  This  justification  was  formally 
expressed  in  our  Declaration  of  Independence.  Whatever 
may  have  been  the  conditions  causing  the  people  to  take 
action,  the  Rebellion  itself  was  made  to  establish  certain 
fundamental  principles  in  which  the  people  at  that  time 
firmly  believed. 

If  we  turn  to  more  recent  happenings,  the  establishment 
of  a  Republic  in  China,  and  the  deposition  of  the  Czar  in 
Russia,  we  find  that,  not  until  the  people  of  those  countries, 
or  those  portions  of  the  people  capable  of  taking  intelligent 
action,  had  been  imbued  with  a  belief  in  the  doctrine  that  a 
government  should  rest  upon  the  principle  of  popular  sover- 
eignty, instead  of  that  of  autocracy,  was  it  possible  for  a 
successful  revolt  to  be  made  against  the  long  standing  mis- 
rule and  oppression  of  their  autocratic  rulers. 

Difficulties  in  Establishing  a  Government  by  Revolu- 
tion.—  Of  all  methods  of  establishing  a  constitution,  that 
by  means  of  a  revolution  is  much  the  most  difficult,  and 
resort  to  it  is  justified  only  when  all  other  means  have 
failed.  Rarely  is  success  achieved  except  after  years  of 
turmoil  and  bloodshed.  The  French  Revolution  led  to 
years  of  fighting  before  stable  political  conditions  were 
finally  achieved.  In  one  sense  it  might  almost  be  said  that 
the  final  end  sought  was  not  attained  until  the  establishment 
of  the  present  form  of  government  in  1871.  In  the  case  of 


THE  FORMULATION  OF  CONSTITUTIONS      103 

our  own  revolution  we  had  to  go  through  the  so-called 
critical  period  of  thirteen  years  from  1776  to  1789  before 
a  definitive  constitution  was  adopted.  The  revolution  of 
1911,  in  China,  by  which  the  old  Manchu  Dynasty  was  over- 
thrown, has  as  yet  failed  to  give  to  that  country  a  perma- 
nent constitution.  The  revolutions  in  Turkey  and  Persia 
a  few  years  ago  proved  to  be  abortive  and  the  final  form  of 
government  that  those  countries  will  have  is  still  in  doubt. 
The  revolution  in  Russia  in  1917  has  been  productive  of 
extreme  disorder,  and  it  is  impossible  to  foresee  the  out- 
come. 

The  situation  confronting  a  population  which  has  suc- 
ceeded in  overthrowing  the  established  government  is  as  fol- 
lows. It  finds  itself  in  the  first  place  owing  allegiance  to 
a  government  which  can  hardly  be  otherwise  than  a  tem- 
porary makeshift,  one  hastily  organized  for  the  purpose  of 
conducting  a  revolutionary  movement  rather  than  for  pro- 
viding a  permanent  constitutional  system.  In  the  second 
place  this  government  is  strictly  speaking  an  illegal  one,  or 
at  least  one  which  was  illegal  in  its  inception  and,  even  after 
all  resistance  against  it  has  ceased,  probably  still  lacks  that 
affirmative  action  on  the  part  of  the  people  that  will  give  it 
full  legality  in  accordance  with  the  doctrine  of  popular 
sovereignty.  The  government  in  existence  is  essentially  one 
known  as  a  Provisional  Government,  a  de  facto  but  hardly 
as  yet  a  de  jure  government.  The  problem  is  to  convert  this 
provisional,  imperfect,  de  facto  government  into  a  perma- 
nent, carefully  elaborated,  de  jure  government,  or  rather  to 
supplant  it  by  one  having  the  latter  characteristics. 
'  In  solving  this  problem  the  Provisional  Government  has 
several  lines  of  conduct  open  to  it.  It  can,  in  the  first  place, 
assume  that  it  has  full  power  to  act  as  the  representative  of 
the  people  in  respect  to  the  work  of  both  drafting  and  adopt- 


104     THE  GOVERNMENT  OF  MODERN  STATES 

ing  a  permanent  constitution  and,  if  the  people  acquiesce  in 
this  assumption,  it  must  be  presumed  that  they  in  effect 
have  the  necessary  public  sanction  for  the  exercise  of  this 
power.     This  is  the  position  that  was  tak^n  by  the  Con- 
stituent Assembly   which   was   brought   into   existence   to 
represent  France  in  the  ratification  of  the  treaty  bringing 
to   a   conclusion   the   Franco-Prussian   War   of    1870-71. 
This  Assembly,  though  elected  nominally  only  for  the  pur- 
pose of  settling  the  terms  of  peace  with  Prussia,  in  fact 
found  itself  on  the  conclusion  of  the  treaty  the  only  general 
political  authority  of  the  land.     It  was  quite  proper  for  it 
therefore  to  undertake  the  work  of  a  Provisional  Govern- 
ment.    It,  however,  went  much  further  than  this.     In  addi- 
tion to  acting  as  a  de  facto  or  Provisional  Government,  the 
Assembly  took  to  itself  the  function  of  a  ^constituent  assem- 
bly or  constitutional  convention  and  proceeded,  after  an  in- 
terval of  several  years,  to  formulate  and  enact  a  series  of 
fundamental  laws,  which,  with  certain  amendments,  con- 
stitute the  existing  constitution  of  the  present  French  Re- 
public.    It  is  a  matter  of  no  little  interest  to  note,  there- 
fore, that,  though  France  is  now  undoubtedly  in  possession 
of  a  full  Representative  Government,  the  constitution  pro- 
viding for  this  government  was  neither  drafted  nor  adopted 
by  a  body  directly  authorized  by  the  people  to  undertake 
this  work,  nor  was  it  ever  referred  to  the  people  or  ap- 
proved by  them  in  any  way  other  than  by  tacit  acquiescence 
in  an  accomplished  fact.     It  should  be  noted,  however,  that 
the  body  performing  this  work  was  not  a  self  constituted 
body  but  was  composed  of  members  duly  elected  by  the 
people  though  not  elected  for  the  express  purpose  of  per- 
forming this  work. 

A  second  line  of  procedure  is  for  the  Provisional  Govern- 
ment frankly  to  recognize  both  its  provisional  character  and 


THE  FORMULATION  OF  CONSTITUTIONS      105 

the  limited  scope  of  its  authority  and,  proceeding  on  this 
basis,  to  take  the  necessary  steps  by  which  a  permanent 
government  may  be  established  by  deliberate  affirmative 
act  of  the  people.  If  it  adopts  this  policy  it  can  do  one  of 
three  things :  ( i )  it  can  itself  draft  a  constitution  and  submit 
it  to  the  people  for  adoption;  or  (2)  it  can  provide  for  the 
assembling  of  a  special  body  the  members  of  which  are 
selected  by  the  people  in  some  way  for  the  drafting  and 
adoption  of  a  constitution;  or  (3)  it  can  provide  for  a 
body  of  this  character  having  the  function  simply  of  draft- 
ing a  constitution  which  shall  be  submitted  to  the  people  for 
approval.  It  need  hardly  be  pointed  out  that  the  latter 
method  constitutes  the  one  most  nearly  conforming  to  the 
principle  of  popular  sovereignty.  It  is  therefore  the  one 
that  should  be  adopted  unless  the  existence  of  bitter  divisions 
among  the  people  regarding  the  character  of  government 
to  be  established  are  such  as  to  render  it  likely  that  a  resort 
to  this  method  would  invite  further  dissensions  and  possible 
disaster  to  the  whole  undertaking. 

In  the  case  of  our  own  revolt  from  England,  provision 
was  made  for  the  assembling  of  a  special  convention  for  the 
framing  or  drafting  of  a  constitution  and  that  convention, 
after  completing  its  draft,  provided  that  it  should  go  into 
effect  as  soon  as  it  had  been  ratified,  that  is,  adopted,  by 
nine  states  acting  through  state  conventions  assembled  for 
that  purpose. 

A  nice  question  is  presented  as  to  whether  the  convention 
framing  our  constitution  was  not  a  revolutionary  body  since 
no  provision  was  made  for  any  such  body  by  the  existing 
constitution,  the  Articles  of  Confederation,  that  document 
making  no  provision  by  which  constitutional  changes  might 
be  effected. 

In  the  foregoing,  we  may  seem  to  have  gone  out  of  our 


io6      THE  GOVERNMENT  OF  MODERN  STATES 

way  in  discussing  the  character  of  political  revolutions. 
We  have  felt  justified  in  doing  so  both  on  account  of  the 
great  importance  of  the  subject  at  the  present  time  and 
the  extreme  difficulty  that  exists  in  making  students  appre- 
ciate the  importance  that  matters  of  pure  political  theory 
play  in  determining  the  course  of  historical  events  and  the 
character  of  governments  enjoyed  by  States.  Next  to  the 
present  world  war  itself,  the  greatest  political  movement  of 
modern  times  has  been  the  widespread  revolts  in  various 
quarters  of  the  globe,  in  "Russia,  China,  Turkey,  Persia,  and 
elsewhere,  for  the  establishment  of  new  forms  of  govern- 
ment. If  we  are  to  understand  this  movement  we  must  see 
clearly  that  these  revolutions  are  essentially  ones  having  as 
their  issues  great  political  principles  rather  than  a  mere 
protest  against  governmental  conditions  and  practices. 


CHAPTER  VII 

THE   MODIFICATION    OF    CONSTITUTIONS 

Turning  from  a  consideration  of  the  manner  in  which 
constitutions  are  adopted  to  that  of  the  manner  in  which 
they  are,  or  may  be,  modified,  we  have  to  deal  with  an  en- 
tirely new  set  of  problems.  Though  supreme  importance 
attaches  to  the  act  of  adopting  a  constitution,  in  the  first  in- 
stance, and  the  problem  is  one  which  has  yet  to  be  met  by 
many  politically  backward  peoples,  it  is  not  one  of  practical 
importance  to  most  nations. 

All  western  nations  at  least,  with  possibly  one  or  two  ex- 
ceptions, have  firmly  established  constitutional  systems. 
The  problem  of  constitutional  development  is  thus  that  of 
the  modification  of  these  systems  rather  than  that  of  cre- 
ating new  constitutions  out  of  hand. 

This  problem,  moreover,  is  one  which  is  always  with  us. 
Particularly  is  this  true  of  the  United  States  at  the  pres- 
ent time.  After  years  of  unquestioned  adherence  to  cer- 
tain fundamental  principles  lying  at  the  basis  of  both  our 
federal  and  our  state  constitutions,  public  opinion  has  be- 
gun to  question  whether  they  have  the  virtue  or  validity 
which  has  been  so  universally  attributed  to  them  in  the 
past.  There  is  scarcely  a  state  among  our  forty-eight  com- 
monwealths in  which  important  constitutional  changes  are 
not  now  being  seriously  urged.  The  problem  of  the  modi- 
fication of  constitutions  is  thus  a  very  live  one. 

The  Question  of  Policy  in  Respect  to  the  Ease  with 
which  Constitutions  May  Be  Modified. —  If  an  analysis 

107 


io8      THE  GOVERNMENT  OF  MODERN  STATES 

of  this  problem  of  constitution  modification  is  made  it  will 
be  found  that  it  involves  two  sets  of  considerations:  (i)  the 
policy  that  should  be  adopted  in  respect  to  the  facilitation 
or  the  restriction  of  the  effecting  of  modifications  in  a  con- 
stitution once  adopted;  and  (2)  the  procedure  that  should 
be  provided  by  which  this  policy  is  to  be  carried  into  effect. 
The  first  is  one  of  principle;  the  latter  one  of  means.  Mani- 
festly no  intelligent  action  can  be  taken  in  reference  to  the 
second  until  a  decision  has  been  reached  regarding  the  first. 
Before  taking  up  the  various  means  by  which  constitutional 
changes  may  be  effected,  as  illustrated  in  the  political  sys- 
tem of  our  own  and  foreign  countries,  we  shall  therefore 
seek  to  point  out  the  considerations  that  have  to  be  borne 
in  mind  in  formulating  a  policy  regarding  the  amendability 
at  all  of  constitutions. 

Stability  a  Prime  Requisite  of  Any  Constitutional  Sys- 
tem.—  One  of  the  first  requisites  of  any  constitutional  sys- 
tem is  that  it  shall  have  a  high  degree  of  stability. 

It  is  universally  recognized  that  neither  political  nor 
social  progress  can  be  achieved  when  the  fundamental  law 
of  a  land  is  undergoing  constant  modification.  Not  only 
do  frequent  changes  in  the  constitutional  system  of  a  coun- 
try necessarily  introduce  disturbing  elements  into  the  life 
of  a  people,  but  the  mere  fact  that  such  changes  are  possi- 
ble, and  likely  to  occur,  tends  to  keep  the  people  stirred  up ; 
and  the  uncertainties  regarding  the  future  thereby  endan- 
gered act  as  a  powerful  deterrent  upon  undertakings  of  all 
Idnds.  More  important  still  the  making  of  frequent 
changes  tends  to  weaken  that  allegiance  to,  and  respect  for, 
the  government  that  is  such  an  important  factor  in  securing 
an  orderly  conduct  of  political  affairs. 

Flexibility  Also  a  Requisite  of  a  Constitutional  Sys- 
tem.—  The  high  desirability  of  giving  stability  to  a  consti- 


THE  MODIFICATION  OF  CONSTITUTIONS      109 

tutional  system  is  questioned  by  no  one.  There  is,  how- 
ever, another  consideration  directly  opposed  to  it  that  is 
no  less  important.  Were  conditions  to  be  met  by  a  govern- 
ment unchangeable ;  were  the  political  ideas  and  aspirations 
of  a  people  always  the  same;  and  were  the  framers  of  con- 
stitutions all-skillful  in  framing  a  constitution  to  meet  these 
conditions  and  aspirations,  it  would  be  possible  to  frame 
a  constitution  of  such  a  character  that  no  need  for  its  sub- 
sequent modification  would  afterwards  arise.  It  need 
hardly  be  said  that  no  one  of  these  three  conditions  actually 
obtains.  Conditions  of  life  are  constantly  changing.  The 
rise  of  the  factory  system,  the  conversion  of  most  western 
countries  from  a  nearly  exclusively  agricultural  community 
to  one  in  which  industry,  as  distinguished  from  agriculture, 
is  highly  developed,  the  aggregation  of  people  in  industrial 
centers  and  large  cities,  the  development  of  means  of  com- 
munication, and  the  enormously  greater  complexity  of  mod- 
ern life,  as  compared  with  that  of  former  times,  to  men- 
tion but  a  few  of  the  changes  which  have  taken  place  in 
recent  years  and  are  still  at  work,  have  altered  funda- 
mentally the  problems  that  a  government  has  to  meet. 

No  less  fundamental  are  the  changes  that  have  taken, 
and  are  taking,  place  in  respect  to  the  attitude  of  the  in- 
dividual towards  the  State  and  the  government  through 
which  the  latter  acts.  From  an  organ  having  but  a  few 
essential  functions,  such  as  the  conduct  of  foreign  relations, 
the  maintenance  of  order  and  the  protection  of  life  and 
property,  the  government  is  now  looked  upon  as  an  instru- 
ment through  which  all  matters  afTecting  the  general  wel- 
fare may  be  handled.  To  the  great  importance  attached  to 
the  obligations  of  the  government  in  respect  to  the  protec- 
tion of  the  liberties  of  individuals,  as  individuals,  has  suc- 
ceeded an  attitude  of  mind  where  the  emphasis  is  rather 


i  io      THE  GOVERNMENT  OF  MODERN  STATES 

laid  upon  the  obligation  of  the  government  to  promote  social 
welfare,  to  take  the  steps  necessary  to  bring  about  a  greater 
equality  of  opportunities  and  a  more  equitable  distribution 
of  wealth,  income  and  means  of  enjoyment.  It  is  not  too 
much  to  say  that  the  change  that  has  thus  taken  place  in 
respect  to  the  attitude  of  mind  towards  the  functions  of 
government  during  the  past  few  generations  is  little  short 
of  revolutionary. 

Finally,  it  is  hardly  necessary  to  state  that  the  framers 
of  constitutions  are  not  infallible;  and  it  is  certain  that 
actual  experience  under  a  system  will  reveal  features  in 
respect  to  which  improvements  can  with  advantage  be  made. 
Especially  is  this  true  when  the  system  framed  represents 
one  with  which  the  people  concerned  have  never  had  any 
practical  experience.  The  attempt  made  in  the  latter  part 
of  the  eighteenth  and  in  the  nineteenth  centuries  to  create 
governments  based  on  the  representative  principle  repre- 
sented a  great  experiment  in  government.  Though  the 
principle  that  it  was  sought  to  establish  might  be  clear 
enough  there  was  almost  nothing  to  guide  constitution  fram- 
ers in  respect  to  the  proper  means  to  be  employed  in  put- 
ting this  principle  into  operation.  It  would  have  been  a 
miracle  had  they  made  no  errors. 

It  follows  inexorably  from  this  that  the  constitution  of 
a  modern  State  should  be  susceptible  of  progressive  change 
or  growth  as  errors  of  judgment  in  its  framing  are  re- 
vealed by  experience,  as  conditions  change,  and  as  the  po- 
litical aspirations  and  beliefs  of  the  people  undergo  altera- 
tion. We  have  thus  then  two  directly  opposing  considera- 
tions which  have  to  be  met  —  the  need  for  stability  and  the 
equal  need  for  flexibility.  The  problem  is  to  adopt  a  pol- 
icy and  procedure  in  respect  to  the  amenclability  of  consti- 
tutions that  will  represent  a  compromise  between  the  two  — • 


THE  MODIFICATION  OF  CONSTITUTIONS      in 

a  scheme  which,  while  permitting  changes  to  be  made,  will 
yet  insure  that  they  will  not  be  effected  until  it  is  certain 
that  they  represent  real  improvements,  and  correspond  to 
the  real,  and  not  a  merely  temporary,  change  in  the  polit- 
ical desires  of  the  people. 

Two  Methods  of  Securing  Both  Stability  and  Flexi- 
bility: Proper  Drafting  of  the  Constitution  and  Pro- 
vision of  Adequate  Means  for  Effecting  Constitutional 
Changes. —  A  study  of  the  problem  of  harmonizing  these 
two  apparently  conflicting  and  opposing  principles  of  sta- 
bility and  flexibility  shows  that  two  means  may  be  em- 
ployed for  this  purpose :  ( i )  the  drafting  of  the  provisions 
of  the  constitution  in  such  a  way  that  great  freedom  of  ac- 
tion is  possible  under  them;  and  (2)  the  provision  of  means 
through  which  the  constitution  as  first  drafted  may  be  for- 
mally amended. 

Of  these  two  methods  the  first,  if  not  the  most  impor- 
tant, is  the  one  upon  which  reliance  should  primarily  be 
placed.  Provision  of  means  by  which  a  difficulty  may  be 
avoided  is  always  preferable  to  provision  of  means  by  which 
a  difficulty  after  it  has  arisen  may  be  met.  Flexibility  is 
not  synonymous  with  susceptibility  to  change.  It  indeed  is 
almost  the  opposite  of  this.  A  flexible  object  is  one  which 
can  be  bent  without  breaking;  one  that  can  be  adjusted  to 
new  conditions  without  undergoing  any  structural  change. 
In  this  sense  stability  and  flexibility  are  not  incompatible 
qualities.  The  presence  of  the  latter  attribute  may  indeed 
add  strength  to  the  former.  The  really  stable  constitution 
is  thus,  in  fact,  the  flexible  constitution,  the  one  which  is 
of  such  a  character  that  it  can  adjust  itself  to  new  condi- 
tions and  to  new  demands  without  itself  undergoing  struc- 
tural change. 

We  have  here  to  do  with  what  is  probably  the  most  im- 


ii2      THE  GOVERNMENT  OF  MODERN  STATES 

portant  consideration  involved  in  the  whole  problem  of 
constitution  drafting.  It  is  one  that  should  never  be  out 
of  the  minds  of  those  having  responsibility  for  this  work. 
The  extent  to  which  it  is  met  determines  in  no  small  degree 
the  excellence  of  work  performed.  Turning  now  to  the 
means  that  may  be  employed  in  meeting  this  consideration 
it  will  be  found  that  but  one  method  is  possible;  that  of  con- 
fining the  provisions  of  the  constitution  as  far  as  possible 
to  absolutely  essential  features  and  leaving  all  less  essential 
matters  to  the  determination  of  the  government  which  is  to 
be  established  by  the  constitution.  To  the  extent  to  which 
this  principle  is  violated  there  is  created  a  constitutional 
system  which  is  rigid  but  not  necessarily  stable,  since  to 
that  extent  the  probability  of  necessity  for  change  in  the 
constitution  itself  is  correspondingly  increased. 

To  illustrate,  a  constitution  may  provide,  as  does  our  fed- 
eral constitution,  in  effect,  though  not  in  so  many  words, 
that  the  conduct  of  the  administrative  affairs  of  the  govern- 
ment shall  be  entrusted  to  such  administrative  departments 
as  may  be  created  by  the  government  from  time  to  time  for 
that  purpose;  or,  it  may  provide,  as  does  that  of  China, 
that  these  affairs  shall  be  entrusted  to  certain  enumerated 
departments.  In  both  of  these  cases  the  same  fundamental 
provision  is  made  that  the  administrative  affairs  of  the  gov- 
ernment shall  be  conducted  by  administrative  departments. 
In  the  former,  however,  the  whole  matter  of  determining 
the  number,  designation  and  jurisdiction  of  these  depart- 
ments is  left  to  the  decision  of  the  government  established 
by  the  constitution.  The  hands  of  the  latter  are  left  free 
to  take  such  action  as  conditions  at  any  time  warrant.  The 
constitution  in  this  respect  thus  has  a  high  degree  of  both 
flexibility  and  stability  —  flexibility  since  provision  once 
made  can  readily  be  changed  as 'new  conditions,  demands 


THE  MODIFICATION  OF  CONSTITUTIONS      113 

or  opinions  arise,  stability  since  the  likelihood  of  any  change 
in  the  constitution  itself  being  necessary  is  rendered  ex- 
tremely remote.  In  the  latter  case  we  have,  instead  of 
flexibility,  rigidity,  instead  of  stability,  instability.  For, 
with  a  definite  determination  of  the  number  and  character 
of  the  administrative  departments  that  shall  be  employed, 
all  opportunity  is  destroyed  for  readjusting  the  administra- 
tive organization  to  meet  new  conditions,  needs  or  desires, 
and  a  direct  incentive  for  the  effecting  of  changes  in  the 
constitution  is  created,  since,  by  that  means  alone,  can 
needed  cHanges  in  this  respect  be  made. 

The  foregoing  but  illustrates  a  choice  that  must  be  made 
in  respect  to  almost  every  feature  of  a  constitution.  That 
document  may  thus  content  itself  with  providing  that  jus- 
tice or  law  shall  be  administered  through  a  system  of  courts 
organized  on  a  certain  basis,  or  it  may  seek  to  set  forth  in 
detail  the  scheme  of  judicial  tribunals  to  be  established,  the 
manner  of  selecting  the  judicial  officers  to  man  them,  the 
procedure  to  be  followed,  etc.  It  may  content  itself  with 
providing  for  a  legislature  of  a  certain  character,  or  may 
seek  to  determine  precisely  how  that  body  shall,  not  only 
be  constituted,  but  the  manner  in  which  it  shall  exercise 
its  powers.  It  may  give  a  broad  grant  of  powers  to  the 
government  to  be  established,  or  it  may  restrict  these  pow- 
ers by  all  sorts  of  limitations  and  restrictions. 

A  primary  principle  of  constitution  drafting  should, 
therefore,  be  that  of  giving  to  the  constitution  the  widest 
possible  flexibility  compatible  with  definitely  determining  the 
general  character,  organization,  jurisdiction  and  modes  of 
procedure  of  the  government  to  be  established  by  it.  No 
detail  should  be  inserted  unless  this  detail  is  essential  in 
order  that  the  general  scheme  of  government  and  its  pow- 
ers may  be  made  clear. 


ii4    THE  GOVERNMENT  OF  MODERN  STATES 

The  Constitution  of  the  United  States  a  Model  of 
Proper  Drafting. —  In  no  respect  has  our  federal  constitu- 
tion received  greater  praise,  or  merited  it,  than  in  respect 
to  this  point.  It  stands  today  a  model  of  self  restraint,  as 
it  were,  in  respect  to  the  confining  of  its  provisions  to  those 
features  which  were  deemed  to  be  absolutely  essential. 
That  exceptions  to  this  occur,  is  due,  not  to  any  lack  of 
appreciation  of  the  importance  of  this  principle,  and  of 
desire  to  follow  it,  but  to  the  fact  that  no  judgment  can  be 
infallible.  To  this  fact,  primarily,  is  due  the  fact  that  the 
United  States,  notwithstanding  the  tremendous  changes 
which  have  taken  place  in  conditions,  problems  of  govern- 
ment and  political  thought,  has  had  a  progressive  develop- 
ment of  its  political  life  and  institutions  with  but  few 
changes  in  its  constitution  as  first  drafted. 

Defective  Character  of  the  Constitutions  of  Many  of 
the  States  of  the  United  States  from  the  Standpoint  of 
Proper  Drafting. —  If  we  turn  from  our  federal  to  our  state 
constitutions  we  find  quite  a  different  condition  of  affairs. 
The  earlier  constitutions  were  marked  by  an  adherence  to 
this  principle  of  dealing  with  essentials  and  of  expressing 
provisions  in  general  terms  to  an  extent  almost  as  marked 
as  in  the  case  of  the  federal  constitution.  Later  constitu- 
tions have  departed  widely  from  this  principle.  Many  of 
the  more  recent  constitutions  represent  the  attempt  to  regu- 
late in  the  greatest  practicable  detail  the  manner  in  which 
the  government  shall  be  organized,  the  jurisdiction  or  power 
of  each  organ  and  the  precise  manner  in  which  these  pow- 
ers shall  be  exercised.  The  reason  for  this  change  in  policy, 
which  is  one  which  cannot  but  be  regretted,  is  not  difficult 
to  find.  It  consists  in  the  fact  that  the  electorate  has  not 
been  satisfied  with  the  manner  in  which  its  agent,  the  gov- 
ernment, has  discharged  the  duties  entrusted  to  it.  Par- 


THE  MODIFICATION  OF  CONSTITUTIONS      115 

ticnlarly  has  it  been  dissatisfied  with  the  working  of  that 
part  of  the  government  to  which  it  entrusted  the  exercise 
of  legislative  powers.  That  the  electorate  was  justified  in 
being  dissatisfied  with  the  manner  in  which  its  representa- 
tives performed  their  duties  is  unquestionable.  It  is  when 
we  turn  to  the  means  taken  by  the  electorate  to  remedy  this 
condition  of  affairs  that  one  may  well  doubt  whether  the 
proper  line  of  action  was  taken.  T%he  question  of  the  re- 
form of  our  state  governments  is  too  large  a  one  for  us  to 
enter  upon  in  the  present  place.  It  is  pertinent,  however, 
to  point  out  that  the  electorates  of  our  states,  having  dis- 
covered that  the  governments  they  had  established  did  not 
work  satisfactorily,  had  two  alternatives  open  to  them. 
They  could  either  have  sought  to  discover  and  correct  the 
defects  in  the  system  of  government  established  by  them; 
or  have  sought  to  control  the  abuse  of  power,  or  failure  to 
exercise  power  properly,  by  themselves  prescribing  in  greater 
detail  how  the  power  granted  should  be  exercised.  For 
the  most  part  they  have  chosen  the  latter  alternative.  In 
doing  so  a  great  mistake  has  been  made.  The  failure  of 
state  governments  has  been  due,  not  to  the  fact  that  too 
broad  powers  have  been  granted  to  them,  but  to  the  fact 
that  the  problem  of  distributing  these  powers  among  the 
several  organs  of  government  was  not  properly  worked 
out,  and  the  further  failure  that  adequate  provision  was 
not  made  by  which  the  electorate  might  exercise  its  second 
great  function,  that  of  holding  its  agent  to  a  strict  account- 
ability for  the  manner  in  which  it  discharged  the  duties 
placed  upon  it.  The  fault  in  other  words  was  the  fault  of 
the  electorate.  It  first  failed  to  work  out  properly  the 
problem  of  government,  and  then  failed  to  discharge  prop- 
erly its  duties  as  a  principal,  or  rather  failed  to  provide 
itself  with  the  means  for  discharging  these  duties  properly. 


u6      THE  GOVERNMENT  OF  MODERN  STATES 

A  due  appreciation  of  this  fact  would  have  led  it,  not  to 
lessen  the  power  of  government,  to  tie  its  hands,  as  it  were, 
and  thus  render  it  if  anything  more  ineffective,  but  to  have 
corrected  the  defects  in  respect  to  the  location  of  powers 
within  the  government. 

Early  Constitutions  Characterized  by  Excessive  Rig- 
idity.—  There  can  be  little  doubt  that  almost  all  the  earlier 
constitutions,  that  is,  those  which  were  adopted  in  the  lat- 
ter part  of  the  eighteenth  or  first  half  of  the  nineteenth 
centuries  were  characterized  by  an  excessive  rigidity.  Cer- 
tain of  them  were  in  terms  declared  to  be  unchangeable. 
Others  imposed  such  conditions  for  the  effecting  of  a 
change  as  to  make  them  in  practice  almost  immutable. 
This  was  due  to  various  causes.  In  the  first  place  political 
thought  was  largely  dominated  by  the  idea  of  natural  law. 
The  belief  was  widely  held  that  there  were  certain  rights, 
and  certain  political  principles  which  owed  their  validity 
to  natural  law,  and  were  consequently  true  for  all  time 
and  under  all  conditions.  Believing  in  this,  it  was  the  de- 
sire of  constitution  framers,  not  only  to  incorporate  these 
rights  and  principles  in  the  constitutions  they  were  fram- 
ing, but  to  incorporate  them  in  such  a  way  that  they  could 
not  be  departed  from,  or  only  departed  from  with  extreme 
difficulty. 

In  the  second  place  the  world  had  not  yet  come  under  the 
influence  of  the  evolutionary  point  of  view.  It  was  not 
until  the  middle  of  the  nineteenth  century  that  Darwin  and 
Wallace  made  their  epoch-making  contribution  to  natural 
science  that  existing  forms  of  life  have  attained  their  pres- 
ent character  as  the  result  of  long  evolutionary  processes 
and  attempted  to  formulate  the  laws  governing  this  change. 
This  contribution  revolutionized,  not  only  the  study  of 
natural  science,  but  that  of  practically  all  thought.  In  all 


THE  MODIFICATION  OF  CONSTITUTIONS      117 

fields,  whether  of  morals,  political  institutions  or  social 
conventions,  it  became  apparent  that  the  same  principle 
could  be  applied  in  interpreting  present  conditions.  The 
idea  that  existing  conditions  were  permanent  was  destroyed. 
Thought  was  turned  from  the  attempt  to  discover  eternal 
verities  to  that  of  the  discovery  of  laws  of  growth,  develop- 
ment and  adaptation. 

In  no  field  was  this  changed  attitude  of  mind  more  rad- 
ical, or  productive  of  more  important  results,  than  in  that 
of  politics.  The  problem  of  politics,  from  being  one  to 
determine  and  establish  a  system  corresponding  to  natural 
law,  became  one  to  determine  and  establish  a  system  which, 
while  conforming  to  existing  conditions,  should  be  sus- 
ceptible of  progressive  change  as  the  conditions  to  be  met 
changed. 

A  third  reason  for  the  placing  of  great  difficulties  in  the 
way  of  change  in  constitutional  provisions  arose  from  the 
fact  that  these  early  constitutions  represented  the  establish- 
ment of  Popular  Government  as  opposed  to  Autocracy. 
The  feeling  was  strong  that  though  the  former  had  won  a 
victory  over  the  latter,  all  danger  of  a  restoration  of  Abso- 
lutism was  by  no  means  over.  Coupled  with  this  was  an 
equal  fear  that  the  people  might  go  to  the  other  excess  and 
establish  a  political  Democracy  which,  in  their  eyes,  meant 
little  more  than  giving  the  country  over  to  the  dangers  of 
mob  rule.  There  was  nothing  like  the  belief  or  trust  in 
Democracy  that  prevails  at  the  present  time.  It  was  for 
these  reasons,  and  to  avoid  these  dangers,  that  extreme  pre- 
cautions were  taken  to  make  constitutions  difficult  of  amend- 
ment. 

Present  Tendency  Towards  More  Flexible  Constitu- 
tions.—  It  is  hardly  necessary  to  state  that  present  condi- 
tions are  quite  different  from  what  they  were  at  the  time 


ii8      THE  GOVERNMENT  OF  MODERN  STATES 

these  early  constitutions  were  adopted.  The  fear  of  the  re- 
establishment  of  an  Autocracy  has  largely  passed  away. 
Political  thought  is  no  longer  dominated  by  the  belief  in 
natural  law.  The  effort  is  no  longer  made  to  devise  political 
institutions  that  are  of  universal  applicability.  The  posi- 
tion is  now  held  that  the  excellence  of  a  political  system  is 
determined  by  the  extent  to  which  it  conforms  to  actual 
conditions,  and  consequently  that  such  systems  should 
change  as  conditions  change.  It  follows  inevitably  from 
this  that  political  thought  now  holds  that  it  was  a  great 
mistake  to  attempt  to  establish  a  constitutional  system  that 
was  unchangeable,  or  one  that  could  be  changed  only  with 
extreme  difficulty;  and  that  all  constitutions  should  contain 
provisions  making  it  possible  for  its  provisions  to  be  changed 
when  it  is  clearly  evident  that  change  is  needed. 

In  the  case  of  the  constitution  of  the  United  States  the 
feeling  is  now  strong  that  the  provisions  contained  in  it 
setting  forth  the  manner  in  which  it  may  be  amended  are 
much  too  restrictive.  What  these  provisions  are  will  re- 
ceive attention  in  another  place. 

Two  Methods  of  Modifying  Constitutions :  By  Formal 
Act  and  by  Informal  Action. —  With  this  knowledge  of 
the  general  considerations  involved  in  making  provision 
of  means  by  which  constitutions  may  be  modified,  we  now 
turn  to  an  examination  of  the  several  methods  of  procedure 
by  which  such  change  may  be  effected.  Consideration 
shows  that  established  constitutions  undergo  changes  in  two 
distinct  ways:  (i)  through  the  formal  alteration  of  the 
provisions  of  the  constitution  as  expressed  in  writing;  and 
(2)  through  the  informal  process  of  changing  the  manner 
in  which  these  provisions  work  by  placing  upon  them  a 
changed  construction  or  by  developing  political  institutions 
and  practices  which  profoundly  modify  the  way  in  which 


THE  MODIFICATION  OF  CONSTITUTIONS      119 

they  operate  in  actual  'practice.  Each  of  these  methods 
requires  separate  consideration. 

Modification  of  Constitutions  by  Formal  Act. —  In 
practically  all  cases,  States,  in  adopting  constitutions,  have 
recognized  that,  either  as  the  result  of  changing  ideas  or 
altered  conditions,  changes  would  have  to  be  made  in  their 
provisions  from  time  to  time.  With  one  or  two  exceptions, 
therefore,  they  have  inserted  in  their  constitutions  provi- 
sions setting  forth  the  manner  in  which  such  changes  may 
be  effected.  These  provisions  are  among  the  most  impor- 
tant of  any  contained  in  the  constitution.  In  practice  they 
vary  widely  in  different  governments.  It  is,  therefore,  of 
extreme  importance  that  the  considerations  that  underlie 
these  variations  should  be  clearly  understood. 

Distinction  Between  Constituent  and  Legislative 
Powers. —  In  considering  this  problem  of  the  formal  modi- 
fication of  constitutions  no  progress  can  be  made  until  a 
clear  grasp  is  had  of  the  fundamental  distinction  between 
what  are  known  as  constituent  and  legislative  powers,  since 
the  whole  question  of  the  methods  that  shall  be  employed 
in  effecting  constitutional  changes  centers  in  the  extent 
to  which  this  distinction  is  recognized  and  separate  provi- 
sion for  their  exercise  is  made. 

Constituent  powers  are  the  powers  pertaining  to  the  legal 
sovereign  to  determine  the  character,  organization,  juris- 
diction and  mode  of  procedure  of  the  government  which 
shall  act  for  it  in  the  actual  conduct  of  State  affairs.  They 
are  the  powers  exercised  by  a  principal  in  creating  and  fix- 
ing the  powers  and  conduct  of  an  agent.  They  represent 
thus  the  direct  exercise  of  sovereign  powers  in  their  most 
important  manifestation.  They  are  from  their  very  na- 
ture original,  inherent  and  unlimited. 

Legislative  powers  are  the  powers  possessed  by  that  par- 


120      THE  GOVERNMENT  OF  MODERN  STATES 

ticular  organ,  or 'organs,  of  the  government  to  which  the 
legal  sovereign  has  entrusted  the  authority  of  enacting  the 
subordinate  legal  regulations  required  for  the  carrying  out 
of  its  functions.  They  are  the  powers  to  frame  rules  of 
conduct  possessed  by  an  agent.  In  contradistinction  to 
constituent  powers,  they  are  derived,  not  original,  dele- 
gated, or  specified,  not  inherent,  limited,  not  unlimited. 
They  extend  no  further  than  the  grant  authorizing  their 
exercise,  and  must  be  exercised  in  strict  compliance  with 
the  manner  laid  down  in  such  grant. 

It  is  hardly  necessary  to  point  out  the  importance  of  this 
distinction.  It  lies  at  the  basis  of  the  whole  question  of 
legality  of  acts  of  the  government.  It  means  that,  not  only 
must  every  act  of  ordinary  administration  rest  upon  a  legal 
warrant  in  order  to  be  valid,  but  that  every  act  of  legisla- 
tion itself  shall  have  a  like  warrant.  When  the  Supreme 
Court  of  the  United  States  is  called  upon  to  decide  as  to 
the  validity  of  an  act  of  Congress,  it  is  doing  nothing  more 
than  pass  upon  this  point,  whether  Congress  has  or  has  not 
acted  within  the  scope  of  its  delegated  authority  and  in 
conformity  with  the  procedure  laid  down  for  it  by  the 
sovereign  authority  in  creating  and  determining  its  pow- 
ers. This  matter  of  the  distinction  between  constituent 
and  legislative  powers  is  one  which  runs  through  the  whole 
conduct  of  government  affairs.  Here,  however,  we  are  in- 
terested in  it  only  as  it  affects  the  problem  of  constitutional 
revision  and  amendment. 

The  Distinction  in  Practice  Between  Constituent  and 
Legislative  Powers  ar\d  the  Manner  of  Their  Exercise 
the  Prime  Factor  in  Determining  Methods  of  Modifying 
'Constitutions. —  It  would  seem  that,  with  a  distinction  so 
clear  and  important  as  that  between  the  rule-making  powers 
of  the  legal  sovereign  and  the  agency  government,  separate 


THE  MODIFICATION  OF  CONSTITUTIONS      121 

provision  would  be  made  for  the  exercise  of  the  two.  The 
situation  is  one  which  would  seem  to  call  for  means  by 
which  the  sovereign  electorate  might,  independently  of  its 
agent,  from  time  to  time  determine  for  itself  what  changes, 
if  any,  it  desired  to  make  in  respect  to  the  character,  pow- 
ers, or  procedure  of  such  agent.  Actually,  however,  this 
is  by  no  means  always,  nor  even  usually,  the  case.  A  study 
of  the  provisions  of  existing  constitutions  regulating  the 
matter  of  constitutional  change  shows  that  to  a  very  large 
extent  the  sovereign  electorate,  instead  of  retaining  in  its 
own  hands  the  exercise  of  this  its  most  essential  power, 
has,  in  fact,  surrendered  it  into  the  hands  of  its  agent,  the 
government.  The  extent  to  which  it  has  done  so  and  the 
conditions  that  it  has  imposed  upon  its  exercise  determine 
the  whole  character  of  the  system  that  it  has  established  for 
the  revision  and  amendment  of  constitutions. 

System  of  Complete  Surrender  by  the  Electorate  of 
the  Exercise  of  Constituent  Powers  to  the  Government. 
-  With  this  as  a  principle  of  classification  of  methods  of 
constitutional  revision  and  amendment,  we  have  first  to 
consider  the  case  where  the  electorate  surrenders,  or  acqui- 
esces in  the  surrender  absolutely  of  the  exercise  of  con- 
stituent powers  into  the  hands  of  the  government.  This 
takes  place  where  no  provision  is  made  in  the  constitution 
for  the  electorate,  acting  on  its  own  initiative,  to  propose 
amendments  to,  or  a  revision  of,  the  constitution,  or  to 
ratify  or  reject  prop@sals  that  may  emanate  from  the  gov- 
ernment. Where  this  system  is  adopted  we  have  the 
anomalous  situation  that  the  government,  though  theoret- 
ically but  an  agent,  and  morally  responsible  to  its  princi- 
pal, the  electorate,  is,  in  fact,  independent  of  the  latter. 
It  determines  for  itself  its  own  character,  organization, 
powers  and  procedure.  The  government  in  fact  becomes 


122      THE  GOVERNMENT  OF  MODERN  STATES 

the  legal  sovereign,  political  sovereignty  only  remaining 
with  the  electorate. 

Complete  Surrender  to  the  Government  of  the  Exer- 
cise of  Constituent  Powers  May  or  May  Not  Involve 
Abolition  of  the  Legal  Distinction  Between  Constituent 
and  Legislative  Powers. —  This  system  of  constitutional 
determination  may  or  may  not  involve  an  abolition,  from 
the  legal  point  of  view,  of  the  distinction  between  constit- 
uent and  legislative  powers.  Thus  the  electorate,  in  sur- 
rendering the  exercise  of  constituent  power  into  the  hands 
of  the  government,  may  provide  that  the  latter  shall  exer- 
cise it  through  the  same  organs  and  with  precisely  the  same 
procedure  that  is  employed  in  exercising  its  legislative 
powers;  or,  it  may  provide  that  the  two  powers  shall  be 
exercised  through  separate  organs  or,  if  the  same  organs 
are  employed,  that  use  shall  be  made  of  a  different  pro- 
cedure. If  the  former  of  these  two  methods  is  employed 
the  legal  distinction  between  the  two  powers  is  totally  de- 
stroyed. It  becomes  impossible  to  distinguish  between  a 
constitutional  enactment  and  an  ordinary  statute,  and  the 
courts  in  fact  make  no  attempt  to  do  so.  The  result  is  that 
one  is  justified  in  saying  that  a  State  with  this  system  has 
no  legal,  though  it  may  have  a  political,  constitution. 

If  the  second  policy  is  pursued  the  distinction  between 
the  two  powers  is  maintained  intact.  Manifestly  the  ob- 
ject sought  in  maintaining  this  distinction  is  to  secure,  if 
possible,  a  situation  where  what  may  be  called  the  funda- 
mental political  law  of  the  land ;  that  is,  the  law  determin- 
ing the  character,  powers  and  general  conduct  of  the  gov- 
ernment, shall  not  be  subject  to  change  with  the  same  ease 
as  laws  of  a  less  important  or  basic  character.  Some  of 
the  more  important  devices  employed  in  securing  this  end 
arc :  That  a  revision  or  amendment  of  the  constitution 


THE  MODIFICATION  OF  CONSTITUTIONS      123 

can  be  effected  only  by  the  legislative  chambers,  specially 
organizing  themselves  into  a  constitutional  convention  for 
that  purpose;  that  action  will  require  the  affirmative  vote 
of  an  absolute  majority  of  the  entire  assembly  instead  of  a 
majority  of  a  quorum,  as  in  the  case  of  ordinary  legisla- 
tion, or  a  vote  greater  than  an  absolute  majority,  such  as 
a  two-thirds  or  three-fourths  vote;  that  affirmative  action 
will  have  to  be  taken  by  two  successive  legislatures,  etc. 
This  latter  method  is  important  since  it  provides  for  a  means 
by  which  the  electorate  may  indirectly  at  least  participate 
in  the  work. 

The  English  System  an  Example  of  Complete  Sur- 
render to  the  Government  of  the  Exercise  of  Constituent 
Powers  and  Abolition  of  the  Legal  Distinction  Between 
Constituent  and  Legislative  Powers. —  The  English  po- 
litical system  furnishes  a  perfect  example  where  the  electo- 
rate has  not  only  wholly  surrendered  to  the  government  the 
exercise  of  constituent  powers,  or,  to  speak  more  correctly, 
has  acquiesced  in  the  complete  exercise  by  that  body  of 
constituent  powers,  but  has  imposed  upon  that  body  no 
obligation  to  exercise  these  powers  in  any  manner  different 
from  that  followed  in  the  enactment  of  ordinary  law.  The 
result  is  that,  in  England,  today,  not  only  does  the  exercise 
of  complete  sovereignty  reside  in  the  government  itself,  but 
no  legal  distinction  exists  between  constituent  and  legisla- 
tive powers.  This  is  the  secret  of  the  sovereignty  of  Par- 
liament, which  is  so  justly  deemed  to  be  such  a  distinctive 
feature  of  the  Englis'h  political  system  and  the  justification 
of  the  statement  often  made  that  England  has  no  constitu- 
tion. 

It  is  hardly  conceivable  that  a  people  desiring  to  organ- 
ize a  political  system  resting  upon  the  principle  of  popular 
sovereignty  should  by  deliberate  act  create  a  government  of 


124     THE  GOVERNMENT  OF  MODERN  STATES 

this  character.  The  explanation  of  its  existence  in  the  case 
of  England,  and  the  fact  that  it  there  gives  satisfactory  re- 
sults in  practice,  are  found  in  three  facts :  ( i )  the  historical 
conditions  under  which  it.  has  come  into  existence  by  a  proc- 
ess of  gradual  evolution  from  an  Autocracy;  (2)  the  de- 
velopment of  certain  canons  of  political  practice,  known  as 
conventions  of  the  constitution  which,  while  having  no  legal 
force,  are  yet  held  to  be  almost  as  binding  as  though  pos- 
sessing that  attribute;  and  (3)  the  development,  outside  of 
the  government  as  it  were,  of  a  body  of  law,  known  as  the 
common  law,  an  essential  feature  of  which  is  the  protection 
of  personal  rights. 

Among  these  canons  of  political  conduct,  or  constitu- 
tional conventions,  to  use  the  term  more  usually  employed, 
the  most  important  from  the  standpoint  of  constitutional 
modification,  is  that  Parliament,  notwithstanding  its  legal 
power  so  to  do,  actually  shall  pass  no  act  having  for  its 
purpose  the  effecting  of  a  material  change  in  the  political 
system  of  the  country  until  an  approval  of  such  change  has 
been  given  by  the  politically  sovereign  electorate.  This 
approval  is  given  by  the  latter  through  a  general  election 
placing  in  power  the  party  pledged  to  put  into  effect  the 
change  proposed.  This  convention  though  not  a  legal  obli- 
gation is  none  the  less  effective,  since  a  disregard  of  it  in 
any  vital  respect  would  in  all  likelihood  lead  to  an  opposi- 
tion that  would  drive  the  offending  Parliament  from  power. 

Though  this  system  has,  as  has  been  stated,  given  very 
satisfactory  results,  we  should  not,  however,  blind  our  eyes 
to  the  fact  that  it  is  one  which  can  be  expected  to  work 
satisfactorily  only  under  the  special  conditions  which  have 
rnade  it  workable  in  Great  Britain  and  that  even  there  it 
by  no  means  always  works  smoothly.  Whatever  may  be 
the  fact  in  the  case  of  Great  Britain,  it  is  certainly  true 


THE  MODIFICATION  OF  CONSTITUTIONS      125 

that,  as  a  general  proposition,  a  failure  to  make  a  distinc- 
tion of  such  importance  as  that  between  the  exercise  of  con- 
stituent and  legislative  powers  throws  open  the  door  to 
abuse  of  power  in  communities  not  having  had  the  political 
development  of  that  country  and  not  possessed  of  that  in- 
herited and  ingrained  attitude  of  mind  towards  the  func- 
tions of  the  government,  and  the  manner  of  their  exercise, 
and  of  political  obligations  in  general,  which  is  so  charac- 
teristic, an  attribute  of  the  English  people. 

In  the  second  place,  it  will  be  noted  that,  under  the  Eng- 
lish system,  not  only  has  the  electorate  absolutely  no  legal 
means  by  which  it  may  initiate  and  have  considered  pro- 
posals for  constitutional  changes,  but  it  has  no  means  by 
which  it  may  directly  express  its  opinions  regarding  pro- 
posals of  this  character  originating  with  its  representative, 
Parliament.  The  only  way  in  which  it  can  approve  or  dis- 
approve of  a  proposed  change  is  by  supporting  or  defeating 
the  party  pledged  to  put  into  effect  such  change.  It  may 
well  happen  that  an  electorate  may  desire  that  a  certain  party 
shall  have  charge  of  the  government  while  it  is  opposed 
to  that  particular  feature  of  this  party's  program  repre- 
sented by  the  proposed  change.  It  is  then  placed  in  the 
difficult  position  where  it  has  to  either  endorse  a  proposal 
with  which  it  is  not  in  accord  or  defeat  the  party  with 
whose  general  policy  it  is  in  agreement  and  by  which  it 
wishes  to  be  represented  in  Parliament.  This  situation  was 
very  much  in  evidence  during  the  critical  period  of  1909- 
14  when  the  momentous  issues  were  up  for  decision  regard- 
ing the  political  status  of  Ireland,  the  power  of  the  House 
of  Commons  in  respect  to  matters  of  finance,  and  the  posi- 
tion and  power  of  the  House  of  Lords  in  the  political  sys- 
tem, matters  going  to  the  very  foundation  of  the  political 
System  of  the  country.  In  no  one  of  these  cases  did  the 


i26      THE  GOVERNMENT  OF  MODERN  STATES 

electorate  have  the  opportunity  of  expressing  its  opinioi 
squarely  upon  the  single  issue  involved. 

The  French  System  an  Example  of  the  Complete  Sur 
render  to  the  Government  of  the  Exercise  of  Constituen 
Powers  with  Maintenance  of  the  Legal  Distinction  Be 
tween  Constituent  and  Legislative  Powers. —  The  politi 
cal  system  of  France  furnishes  an  excellent  example  o 
where  the  electorate  has  pursued  the  second  policy  in  sur 
rendering  full  constituent  powers  to  the  government.  W< 
have  seen  that  the  present  constitution  of  France  was  no 
only  adopted  by  a  body  which  was  not  expressly  elected  fr 
the  people  as  a  constituent  assembly,  but  that,  after  it  wa 
framed,  it  was  not  even  referred  to  the  people  for  ratifica 
tion.  This  constitution,  which  consists  of  three  so-calle( 
constitutional  laws  enacted  February  24,  February  25  am 
July  1 6,  1875,  in  like  manner  accords  to  the  people  no  par 
ticipation  in  the  effecting  of  constitutional  changes,  eithe: 
in  the  way  of  initiating  proposals  for  change,  or  in  tin 
ratification  of  changes  proposed  by  the  government.  I 
does,  however,  provide  that  a  special  procedure  shall  be  em 
ployed  by  the  legislature  in  effecting  constitutional  revision! 
and,  by  so  doing,  maintains  the  distinction  between  con 
stitutional  laws  and  ordinary  statutes.  The  provisions  o; 
the  constitution  governing  this  matter  are  as  follows : * 

The  chambers  shall  have  the  right  by  separate  resolution,  takei 
in  each  by  an  absolute  majority  of  votes,  either  upon  their  own  in 
itiation,  or  upon  the  request  of  the  President  of  the  Republic,  to  de 
clare  a  revision  of  the  constitutional  laws  necessary. 

After  each  of  the  two  chambers  shall  have  come  to  this  decision 
they  shall  meet  together  in  National  Assembly  to  proceed  with  th< 
revision. 

The  acts  effecting  revision  of  the  constitutional  laws,  in  whole  o: 

1  Constitutional  laws  on  the  Organization  of  the  Public  Powers,  Feb 
25,  1875,  Art.  8. 


THE  MODIFICATION  OF  CONSTITUTIONS      127 

n  part,  shall  be  passed  by  an  absolute  majority  of  the  members 
:cmposing  the  National  Assembly. 

During  the  continuance,  however,  of  the  powers  conferred  by  the 
aw  of  Nov.  20,  1873,  upon  Marshal  de  MacMahon.  this  revision 
,hall  take  place  only  upon  the  initiation  of  the  President  of  the 
Republic. 

It  will  be  seen  from  the  foregoing  that,  though  provision 
s  made  for  the  exercise  of  constituent  powers  in  a  manner 
different  from  that  employed  in  the  exercise  of  legislative 
Dowers,  the  two  powers  are,  not  only  as  wholly  vested  in 
he  government  as  in  the  English  system,  but  are  exercised 
>y  what  is  in  effect  the  same  organ  of  government.  Fur- 
hermore,  it  is  of  importance  to  note  that  the  special  safe- 
guards which  are  purported  to  be  thrown  around  the  effect- 
ing of  constitutional  changes  are  from  the  legal  standpoint 
more  or  less  illusory.  This  arises  from  the  fact  that  in 
France  no  court  is  deemed  to  have  the  power  to  declare  a 
law  duly  enacted  by  the  National  Assembly  invalid.  The 
latter  body  thus  has  the  power  to  ignore  the  requirements 
of  the  constitution  regarding  the  employment  of  a  special 
procedure  in  effecting  constitutional  changes.  It  can  thus 
pass  acts,  which  will  be  enforced,  which  are  not  in  con- 
formity with  the  constitution  and  which  thus  in  effect  con- 
stitute modifications  of  that  doctiment. 

In  this  connection  another  fact  of  importance  should  be 
noted.  This  is  that,  in  France,  notwithstanding  the  require- 
ment of  a  special  procedure  in  effecting  constitutional 
changes,  a  requirement  that  does  not  exist  in  England, 
neither  the  same  effective  safeguard  against  constitutional 
change  exists  as  in  the  latter,  nor  is  the  electorate  in  fact 
given  the  same  opportunity  to  express  its  will  regarding 
proposed  constitutional  modifications.  This  arises  from  the 
fact  that  France  has  not  as  yet  developed  as  a  binding  obli- 


ia8      THE  GOVERNMENT  OF  MODERN  STATES 

gation  the  convention  that  no  constitutional  change  of  im- 
portance shall  be  effected  until  a  general  election  has  in- 
tervened between  the  proposal  and  its  final  consummation. 
We  have  here  an  interesting  illustration  of  the  importance 
of  judging  political  systems  by  their  practical  as  well  as 
their  purely  legal  wor-kings. 

System  of  Retention  by  the  People  of  Participation  in 
the  Exercise  of  Constituent  Powers. —  In  marked  con- 
trast with  the  system  whereby  the  exercise  of  constituent 
powers  is  wholly  surrendered  to  the  government  is  the 
system  under  which  the  electorate  retains  in  its  own  hands 
a  participation,  and  usually  a  controlling  voice,  in  the  exer- 
cise of  this  power.  In  order  to  understand  the  various 
ways  in  which  this  participation  can  take  place  certain  im- 
portant distinctions  must  be  made. 
*  Distinction  Between  the  Revision  and  the  Amendment 
of  Constitutions. —  The  first  of  these  is  the  distinction  that 
should  be  made  between  the  revision  of  constitutions  and 
their  amendment.  By  revision  is  meant  the  operation  of 
reconsidering  and  reframing  the  constitution  as  a  whole. 
By  amendment  is  meant  the  operation  of  effecting  a  change 
only  in  some  one  or  more  specific  features  of  a  constitu- 
tion. This  distinction  is  not  one  merely  of  relative  impor- 
tance of  the  two  operations.  The  two  present  quite  differ- 
ent considerations  in  respect  to  the  policy  that  should  be 
pursued  in  permitting  them.  It  is  one  thing  to  provide 
means  by  which  a  constitution  may  be  changed  in  some  one 
or  more  particular  features  and  quite  another  to  provide 
that  the  whole  question  of  the  character  of  the  constitu- 
tional system  that  a  country  shall  have  shall  be  thrown  open 
to  examination  and  redetermination.  It  is  not  to  be  won- 
dered at  therefore  that  States  have  pursued  different  policies 
in  respect  to  the  two ;  that  many,  while  permitting  proposals 


THE  MODIFICATION  OF  CONSTITUTIONS      129 

for  specific  changes  to  be  brought  forward  and  adopted, 
provide  no  means  whereby  an  entire  revision  of  their  con- 
stitution may  be  effected. 

Of  equal  importance  is  the  fact  that  radically  different 
methods  of  procedure  are  required  in  carrying  through  the 
two  operations.  In  amending  a  constitution  no  special 
organ  is  required  for  the  consideration,  formulation  and 
adoption  of  a  proposal.  It  is  otherwise,  however,  in  the 
case  of  a  revision.  Here,  not  only  must  every  single  fea- 
ture of  the  existing  constitution  be  subjected  to  careful 
examination,  a  study  be  made  of  the  manner  in  which  each 
has  worked  in  practice,  and  every  alternative  provision  be 
considered,  but  the  fundamental  character  of  the  constitu- 
tion as  a  whole  must  be  inquired  into.  Such  a  work  can  be 
properly  performed  only  by  an  organ  specially  organized 
for  that  purpose.  The  operation  of  revising  a  constitution 
is  in  fact  strictly  analogous  to  that  of  formulating  and 
adopting  a  constitution  in  the  first  instance.  The  only  im- 
portant difference  between  the  two  is  that,  in  the  latter  case, 
the  work  must  be  done  by  a  body  whiclj  determines  for 
itself  its  procedure  while,  in  the  former,  it  must  proceed 
strictly  in  accordance  with  the  rules  laid  down  for  it  in 
the  constitution  to  be  revised. 

The  Revision  of  Constitutions. —  Where  provision  is 
made  in  a  constitution  that  it  may  be  subjected  to  whole- 
sale revision  two  points  have  to  be  provided  for:  (i)  the 
fixing  of  the  means  through  which  a  decision  shall  be  ar- 
rived at  that  a  revision  shall  take  place;  and  (2)  the  pro- 
viding of  the  procedure  that  shall  be  employed  in  effecting 
the  revision. 

The  matter  of  deciding  whether  a  revision  of  the  con- 
stitution shall  be  entered  upon  may  be  determined  in  a 
number  of  ways.  The  more  important  methods  that  have 


130      THE  GOVERNMENT  OF  MODERN  STATES 

been  provided  in  modern  constitutions  are  the  following: 
The  most  effective  of  all  methods  is  that  where  the  con- 
stitution makes  it  mandatory  that  the  work  of  revision  shall 
be  entered  upon  once  in  so  often.  This  is  accomplished  by 
inserting  in  the  constitution  a  provision  that  at  certain  in- 
tervals of  years  constitutional  conventions  shall  be  convened 
for  this  purpose. 

A  second  method,  somewhat  analogous  to  this,  but  not 
so  stringent,  is  that  where,  instead  of  making  the  convening 
of  a  constitutional  convention  mandatory  at  certain  inter- 
vals of  time,  the  constitution  simply  provides  that  once  in 
so  often  the  question  shall  be  submitted  to  the  electorate 
as  to  whether  it  is  its  desire  that  such  a  convention  shall 
be  had.  This  is  the  provision  in  a  number  of  the  consti- 
tutions of  the  states  of  the  United  States.1  If  this  method 
of  determination  is  adopted  differences  may  exist  in  respect 
to  the  character  of  the  vote  that  will  be  required  in  order 
to  authorize  the  assembling  of  a  convention.  A  bare  ma- 
jority of  the  votes  cast  may  suffice  or  there  may  be  required 
an  affirmative  vote  greater  than  this.  If  it  is  desired  to 
make  the  requirement  very  rigid  the  requirement  may  be 
that  a  certain  proportion  of  the  total  number  of  registered 
voters  shall  vote  for  the  revision.  A  point  of  no  little  im- 
portance is  whether  this  vote  shall  be  had  in  connection 
with  the  regular  election  of  officers  of  the  government  or 
at  a  special  election.  If  the  former  is  adopted  there  is 
danger  that  the  question  of  revision  of  the  constitution 
will  be  deemed  to  be  a  party  issue  and  will  not  be  consid- 
ered to  a  sufficient  extent  on  its  intrinsic  merit.  If  the  lat- 
ter is  adopted  it  is  difficult  to  get  a  general  participation 
on  the  part  of  voters  in  the  election. 

Another  method  of  providing  for  a  constitutional  revi- 

i  For  example,  Md.,  Me.,  Minn.,  Wis.,  Va.,  N.  H.,  and  N.  Y. 


THE  MODIFICATION  OF  CONSTITUTIONS      131 

sion  is  that  where  provision  is  made  by  the  constitution  that 
the  question  of  convening  a  constitution-revising  convention 
shall  be  submitted  to  the  people  whenever  a  certain  number 
of  qualified  voters  petition  that  this  be  done.  This  method 
is  known  as  that  of  "  The  Initiative  "  and  is  analogous  to 
the  Initiative  permitted  in  certain  governments  in  respect 
to  purely  legislative  matters. 

Finally  there  is  the  method  whereby  the  determination  as 
to  whether  the  revision  of  the  constitution  shall  be  entered 
upon  is  left  to  the  government  itself.  When  this  is  done, 
the  provision  may  be;  that  the  government  shall  determine 
when  the  question  of  revising  the  constitution  shall  be  sub- 
mitted to  the  people;  or  that  the  government,  without  get- 
ting any  such  expression  of  opinion  from  the  people,  shall 
itself  be  the  authority  to  determine  when  the  work  of  revi- 
sion shall  be  entered  upon. 

In  respect  to  the  character  or  composition  of  the  body 
that  shall  perform  the  work  of  revision,  the  weight  of  opin- 
ion and  experience  is  in  favor  of  having  this  body  com- 
posed of  persons  specially  selected  for  this  purpose.  The 
objections  to  having  the  work  of  revision  performed  by  the 
legislature,  either  sitting  as  such,  or  reconstituted  as  a  con- 
stitutional convention,  are  two.  In  the  first  place  the  mem- 
bers of  that  body  have  not  been  selected  by  the  electorate 
on  account  of  their  special  qualifications  for  this  work. 
They  have  been  chosen  rather  as  representing  particular 
party  divisions  or  because  of  their  adherence  to  particular 
political  policies.  In  all  modern  communities  having  a 
Representative  Government  there  are  always  men  of  high 
legal  and  other  attainments  who  are  not  actively  engaged 
in  politics  and  who  thus  are  not  members  of  the  legislature, 
but  whose  cooperation  in  the  work  of  determining  the  po- 
litical system  of  the  country  is  very  desirable.  In  the  sec- 


132      THE  GOVERNMENT  OF  MODERN  STATES 

ond  place  it  is  in  the  highest  degree  desirable  that,  as  far 
as  possible,  purely  party  considerations  shall  be  eliin  uated 
from  the  work  of  revising  political  systems.  The  ideal 
is  that  of  getting  together  a  body  of  the  most  competent 
men  who,  in  a  purely  non-partisan  manner,  will  seek  to 
determine  the  character  of  constitution  best  adapted  to  the 
general  needs  of  the  community.  This  cannot  possibly  be 
secured  where  the  work  of  revising  the  constitution  is  en- 
trusted to  the  legislature,  either  sitting  as  such,  or  reconsti- 
tuted as  a  constitutional  convention. 

There  remains  the  final  point  of  the  manner  in  which 
the  work  of  the  constitutional  convention  shall  be  ratified. 
Here  two  questions  of  great  importance  are  presented.  The 
first  is  whether  the  constitution  as  revised  shall  or  shall 
not  be  submitted  to  the  electorate  for  ratification.  The 
second  is  that,  if  submitted  to  the  electorate,  whether  the 
latter  will  be  given  an  opportunity  to  pass  upon  the  changes 
effected  in  detail,  approving  some  and  rejecting  others,  if 
they  so  desire,  or  whether  it  must  accept  or  reject  the  revi- 
sion as  a  whole. 

The  first  of  these  questions,  we  have  already  considered 
to  a  certain  extent  in  our  discussion  of  the  problem  of  the 
original  adoption  of  a  constitution.  There  is  much  to  be 
said  in  favor  of  each  of  the  two  alternatives  that  are  pre- 
sented. The  devising  of  a  constitutional  system  is  a  work 
requiring  the  highest  order  of  abilities.  The  results  reached 
must  rest  upon  considerations  that  it  is  difficult  adequately 
to  get  before  a  large  electorate.  There  is  good  ground  for 
the  position  that  the  opinion  of  a  carefully  selected  body  of 
highly  qualified  representatives  is  of  greater  value  than  that 
of  a  general  electorate.  There  is,  moreover,  no  departure 
from  the  principle  of  Representative  Government  when  the 
electorate  gives  to  a  body  not  constituting  a  part  of  the  gov- 


THE  MODIFICATION  OF  CONSTITUTIONS      133 

ernment  the  power  to  act  for  it  in  respect  to  determination 
of  the  character  of  government  that  shall  be  provided.  On 
the  other  hand,  there  is  always  the  danger  that  the  work 
of  the  convention,  no  matter  what  its  intrinsic  excellence, 
may  not  represent  the  real  wishes  of  the  electorate,  and  a 
system  that  does  not  do  so  violates  the  essential  principle 
of  Popular  Government. 

In  deciding  this  question  as  to  whether  a  revision  of  a 
constitution  should  be  referred  to  the  people  for  ratification 
much  will  depend  upon  the  particular  conditions  of  each 
case  and  especially  the  character  of  the  electorate.  It  may 
thus  well  be  that  while  ratification  by  the  electorate  is  de- 
sirable in  a  country  such  as  the  United  States,  it  would  be 
undesirable  in  a  country  such  as  China.  In  the  United 
States  practice  has  varied  widely,  not  only  between  the  sev- 
eral states,  but  at  different  periods  of  our  history. 

In  regard  to  the  second  question,  also,  arguments  can  be 
urged  in  favor  pf  each  policy.  A  political  system  should 
possess  a  unity.  Its  several  parts  should  all  correspond  to 
certain  fundamental  principles  in  respect  to  the  possession, 
location  and  exercise  of  political  powers.  There  is  thus  a 
danger  that  if  the  electorate  is  permitted  to  accept  some 
changes  and  reject  others  the  outcome  will  be  a  system  lack- 
ing cohesion  and  unity.  On  the  other  hand,  it  is  rather  a 
hard  alternative  to  place  before  an  electorate  that  it  must 
accept  changes  with  which  it  is  not  in  accord  in  order  to 
secure  other  changes  that  it  does  desire.  In  actual  prac- 
tice, however,  the  choice  is  not  so  difficult  as  would  here 
appear.  Most  revisions  maintain  intact  the  essential  prin- 
ciples of  the  existing  constitution.  The  work  of  revision 
thus,  for  the  most  part,  represents  little  more  than  a  series 
of  distinct  amendments.  When  this  is  the  case,  it  would 
seem  preferable  that  the  electorate  should  be  given  an  op- 


134      THE  GOVERNMENT  OF  MODERN  STATES 

portunity  of  passing  upon  each  separate  amendment  pro- 
posed. Where,  however,  the  revision  provides  for  a  form 
of  government  radically  different  from  the  one  in  existence 
it  is  preferable  that  the  electorate  should  be  called  upon  to 
pass  upon  but  the  single  question  of  the  adoption  or  re- 
jection of  the  revision  as  a  whole. 

The  Amendment  of  Constitutions. —  In  the  foregoing 
we  have  considered  the  problem  of  effecting  an  entire  revi- 
sion of  a  constitution.  It  remains  for  us  to  examine  the 
procedure  that  may  be  employed  in  subjecting  a  constitu- 
tion to  partial  changes  leaving  that  document  as  a  whole 
intact.  Modification  of  a  constitution  in  this  way  is  known 
as  its  amendment. 

Distinction  Between  the  Initiation,  the  Adoption,  and 
Ratification  of  Amendments. —  In  entering  upon  this  con- 
sideration the  first  point  to  be  noted  is  that  the  act  of  amend- 
ing a  constitution  involves  three  distinct  operations :  ( I )  the 
initiating  or  bringing  forward  of  proposals  for  amend- 
ments; (2)  the  consideration,  formulation,  if  need  be,  and 
adoption  or  rejection  of  these  proposals;  and  (3)  the  ratifi- 
cation of  such  action.  This  threefold  distinction  is  of  im- 
portance since,  not  only  must  each  point  be  specially  cov- 
ered in  providing  means  for  effecting  amendments  to 
constitutions,  but  the  electorate  may  participate  in  quite  a 
different  way  in  respect  to  each. 

The  Initiation  of  Amendments. —  In  respect  to  the  first 
operation  three  lines  of  action  are  open:  (i)  that  of  leav- 
ing the  initiating  of  proposals  for  constitutional  amend- 
ments to  the  government;  (2)  that  of  entrusting  this  duty 
to  the  electorate;  and  (3)  that  of  permitting  amendments 
to  originate  in  either  of  these  methods.  When  the  first 
procedure  is  adopted,  the  legislature  is  usually,  if  not  in- 
variably, designated  as  the  organ  to  take  action.  When 


THE  MODIFICATION  OF  CONSTITUTIONS      135 

the  second  method  is  adopted,  the  electorate  retains  to  itself 
the  power  to  initiate  and  compel  consideration  of  any  pro- 
posal for  a  constitutional  change  that  it  may  desire  to  bring 
forward.  It  exercises  this  power  through  the  filing  with 
the  government  of  a  petition  bearing  the  signature  of  a 
certain  number,  or  proportion,  of  the  registered  voters. 
Under  the  third  system,  as  has  been  stated,  amendments 
may  be  originated  in  either  manner. 

The  first  of  these  methods  is  the  one  which,  until  very 
recent  years,  was  invariably  adopted  by  the  states  of  the 
United  States.  Within  the  past  few  years,  however,  a 
certain  number  of  states  have  adopted  the  third.  The  sec- 
ond and  third  methods  are  the  ones  which  have  been  gen- 
erally adopted  in  Switzerland. 

The  Adoption  of  Amendments. —  The  second  step  in 
amending  a  constitution  is  that  of  considering,  formulating, 
if  need  be,  and  adopting  or  rejecting  the  proposals  for 
changes  brought  forward.  When  the  first  method  of  orig- 
inating amendment  proposals  is  employed,  the  requirement 
usually  exists  that  the  legislature,  in  acting  upon  amend- 
ment proposals,  shall  act  under  a  procedure  and  rules  differ- 
ent from  those  followed  when  it  is  considering  ordinary 
legislative  proposals.  A  usual  requirement  is  a  vote  greater 
than  a  majority,  usually  two-thirds  of  the  votes  cast,  or  an 
affirmative  vote  of  two-thirds  of  the  total  membership  of 
each  house.  Rarely  is  the  approval  of  the  Governor  re- 
quired as  in  the  case  of  acts  of  legislation. 

When  the  second  method  of  initiating  proposals  is  em- 
ployed, the  legislature  has  no  function  but  that  of  formu- 
lating the  proposal,  if  it  is  not  already  definitely  formulated, 
and  submitting  it  to  the  electorate  for  final  action. 

The  Ratification  of  Amendments. —  The  ratification  of 
an  amendment  is  the  act  by  which  an  amendment  which  has 


136      THE  GOVERNMENT  OF  MODERN  STATES 

been  adopted  by  a  legislature  is  finally  approved  by  the  au- 
thority exercising  legal  sovereignty.  In  some  cases  no  dis- 
tinction is  made  between  the  acts  of  adoption  and  ratifica- 
tion. This  obtains  when  final  power  is  vested  in  the  legis- 
lature of  a  Representative  Government  to  effect  amend- 
ments. The  usual  rule  in  a  Representative  Government  is, 
however,  that  an  amendment,  after  adoption  by  the  legisla- 
ture, shall  be  ratified  by  the  electorate  before  becoming  effec- 
tive. This  is  the  requirement  found  in  the  constitutions  of 
all  but  one  of  the  states  of  the  United  States.1  Various 
provisions  exist  regarding  the  character  of  the  vote  that  is 
required  to  ratify  an  amendment.  In  some  cases  a  majority 
of  the  votes  cast  suffices.  In  others,  a  vote  greater  than  a 
majority  is  required,  or  the  majority  must  also  represent  a 
certain  proportion  of  the  total  number  of  registered  voters. 
Under  such  a  provision  an  amendment  may  be  defeated  even 
though  it  receives  a  large  majority  of  all  the  votes  cast. 
The  object  of  this  provision  is  to  ensure  that  no  constitu- 
tional change  will  be  made  which  does  not  correspond  to  a 
public  demand  sufficiently  strong  to  ensure  that  the  required 
number  of  voters  will  take  the  trouble  required  to  endorse  it. 
Another  method  of  ratification  is  that  of  requiring  the  action 
of  the  legislature  adopting  the  amendment  to  be  ratified  by 
the  next  succeeding  legislature.  This  is  the  Delaware  sys- 
tem. Here  it  will  be  noted  that  the  electorate,  though  not 
voting  directly  upon  the  question,  has  the  opportunity  of 
expressing  its  will  indirectly,  through  the  opportunity  that 
is  given  to  it  of  electing  members  of  the  second  legislature 
who  favor  or  approve  the  ratification  of  the  amendment 
adopted  by  the  preceding  legislature. 

When  the  method  of  originating  amendments  through 

1  Reinsch  :  "  American  State  Legislatures  "  mentions  Delaware  as  the 
only  exception  to  this  rule. 


THE  MODIFICATION  OF  CONSTITUTIONS      137 

petition  by  electors  is  employed,  provision  is  always  made  for 
submitting  the  question  of  the  final  ratification  of  the  pro- 
posed change  to  the  electorate.  Here,  as  in  the  case  of 
amendments  adopted  by  a  legislature,  various  requirements 
may  exist  regarding  the  vote  required  for  ratification. 

Special  Problems  Involved  in  the  Revision  and 
Amendment  of  Constitutions  of  Federal  Governments. — 
In  a  Multiple  or  Federal  Government  the  problem  of  con- 
stitutional revision  or  amendment  presents  certain  considera- 
tions which  are  not  present  in  the  case  of  a  Unitary  Govern- 
ment. Here  the  important  question  is  presented  as  to 
whether  the  modification  of  the  federal  constitution  shall  be 
deemed  to  be  one  which  concerns  only  the  Federal  Govern- 
ment and  the  electorate  of  the  country  as  a  whole  or  whether 
action  shall  be  had  by,  or  through,  the  governments  of  the 
constituent  states  and  their  electorates  individually  consid- 
ered. 

This  question  has  been  answered  in  almost  diametrically 
opposite  ways  by  the  two  leading  States  having  a  Federal 
Government  resting  upon  the  principle  of  Representative 
Government.  In  Switzerland,  the  individual  cantons,  as 
such,  play  no  part  in  effecting  a  revision  or  amenidment  to 
the  federal  constitution,  with  the  single  exception  that  rati- 
fication of  a  revision  or  amendment  requires  the  vote  of  not 
only  a  majority  of  all  the  electors  voting,  but  a  majority  of 
the  voters  voting  in  a  majority  of  the  cantons.  In  the 
United  States  action  must  be  had  both  through  and  by  the 
governments  and  electorates  of  the  constituent  states  acting 
individually.  The  interest  attaching  to  the  government  of 
our  own  country  warrants  our  considering  the  system  there 
prevailing  with  special  detail. 

The  Revision  and  Amendment  of  the  Federal  Con- 
stitution of  the  United  States. —  The  manner  in  which  our 


I38      THE  GOVERNMENT  OF  MODERN  STATES 

federal  constitution  may  be  revised  or  amended  is  set  forth 
in  Art.  V  of  the  Constitution,  which  reads  as  follows : 

The  Congress,  whenever  two-thirds  of  both  Houses  shall  deem 
it  necessary,  shall  prepare  amendments  to  this  constitution,  or  on 
the  application  of  the  legislatures  of  two-thirds  of  the  several 
states,  shall  call  a  convention  for  preparing  amendments,  which  in 
either  case  shall  be  valid  to  all  intents  and  purposes  as  part  of  this 
constitution,  when  ratified  by  the  legislatures  of  three-fourths  of 
the  several  states  or  by  conventions  in  three-fourths  thereof,  as  the 
one  or  the  other  mode  of  ratification  may  be  proposed  by  the  Con- 
gress: Provided  that  no  amendment  which  may  be  made  prior  to 
the  year  one  thousand  eight  hundred  and  eight  shall  in  any  man- 
ner affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the 
first  article,  and  that  no  state,  without  its  consent,  shall  be  deprived 
of  the  equal  suffrage  in  the  Senate. 

The  first  point  to  be  noted  in  respect  to  this  system  of  con- 
stitutional revision  and  amendment  is  that,  from  the  strictly 
legal  point  of  view,  it  places  the  United  States  in  the  class 
o f  governments jwhere  the  entire  power  to  effect _co_nsjtiiu- 
tional  changes  is  vested  in  the,  government,  but  where  a  clear 
distinction  is  made  between  the  exercise  of  mn^jtgenlLand. 
legislate  powers.  The  electorate  has  no  means  of  orig-l 
inating  proposals  for  constitutional  change ;  nor  are  changes 
brought  forward  and  adopted  by  the  government  submitted 
to  it  for  ratification  unless  the  government  desires  to  follow 
that  practice.  This  the  government  in  practice  has  never 
done.  Congress  has  always  designated  action  by  the  state 
legislature  as  the  method  of  ratification. 

A  second  point  of  importance  is  that,  though  the  term 
amendment  is  the  only  one  used,  a  clear  distinction  is  in 
effect  made  between  the  two  operations  of  amending  and 
revising  the  constitution.  Amendments  are  proposed  by 
Congress.  It  lies  with  the  state  governments,  however,  to 


THE  MODIFICATION  OF  CONSTITUTIONS      139 

take  the  initiative  in  convening  a  convention  through  which 
all  features  of  the  constitution  may  be  passed  in  review  for 
the  purpose  of  determining  what  revision  of  the  constitu- 
tion as  a  whole  may  be  desirable. 

It  is  not  our  purpose  in  the  present  place  to  consider  the 
wisdom  displayed  by  our  constitutional  fathers  in  meeting 
the  question  of  the  difficulties  that  should  be  placed  in  the 
way  of  effecting  constitutional  changes.  It  should  be  noted, 
however,  that  the  system  adopted  is  one  which  makes  the 
effecting  of  such  changes  exceedingly  difficult.  This  is  not 
due  wholly  to  the  stringency  of  the  requirements  for  the 
adoption  and  ratification  of  proposals  when  these  provisions 
were  adopted.  At  that  time  there  were  but  thirteen  con- 
stituent states  and  the  membership  of  the  two  Houses  of 
Congress  was  very  much  smaller  than  is  the  case  at  the  pres- 
ent time.  Under  these  circumstances  it  was  far  less  diffi- 
cult to  get  the  required  action  than  is  the  case  at  the  present 
time  when  there  are  forty-eight  states  and  the  two  Houses  of 
Congress  have  a  membership  of  96  and  435,  respectively. 
In  no  small  part  the  great  difficulty  that  now  lies  in  the  way 
of  amending  the  federal  constitution  has  been  due  to  -the 
growth  of  the  country.  The  question  is  thus  a.  fair  one- 
whether,  in  view  of  these  changed  conditions,  a  change 
should  not  be  made  in  respect  to  the  provisions  regulating 
this  matter  of  constitutional  change;  Certainly  the  difficulty 
encountered  in  effecting  amendments  postpones  the  making 
of  changes  long  after  they  are  urgently  needed  and  are 
desired  by  the  great  bulk  of  the  people.  This  is  especially 
true  in  respect  to  certain  technical  features  of  the  constitu- 
tion which  it  is  very  important  to  have  made  in  the  interest 
of  efficient  government,  but  which  cannot  get  the  support 
required  since  they  do  not  involve  any  great  political  prin- 
ciple appealing  to  the  imagination  of  voters.  There  can  be 


i4o     THE  GOVERNMENT  OF  MODERN  STATES 

little  doubt  also  that  the  difficulty  with  which  constitutional 
changes  can  be  effected  is  largely  responsible  for  the  extent 
to  which  the  Supreme  Court  has  yielded  to  the  pressure  to 
interpret  federal  powers  in  such  a  manner  as  to  make  the 
system  workable. 

Before  leaving  this  subject  it  is  of  interest  to  call  atten- 
tion to  the  peculiar  way  in  which  the  requirement  of  ratifica- 
tion of  amendment  proposals  by  state  legislatures  has  worked 
in  practice.  As  no  time  limit  is  fixed  within  which  ratifi- 
cation by  state  legislatures  of  amendments  adopted  by  Con- 
gress must  be  secured,  such  amendment  proposals  are  deemed 
to  be  pending  until  they  are  finally  ratified.  A  curious  dis- 
tinction also  is  made  between  the  conclusiveness  of  state 
action  when  the  action  is  affirmative  and  when  it  is  negative. 
If  a  state  legislature  votes  to  ratify  an  amendment  such 
action  is  irrevocable:  neither  it  nor  a  subsequent  legislature 
can  rescind  the  vote  then  given.  Should  the  vote,  however, 
be  against  ratification  there  is  nothing  to  prevent  that  or 
any  subsequent  legislature  reconsidering  the  matter  and  vot- 
ing for  ratification.  It  results  from  this  that  an  amend- 
ment adopted  by  Congress  may  remain  pending  before  the 
state  legislatures  for  an  indefinite  length  of  time,  and  may 
finally  be  ratified  years  after  action  was  had  by  Congress, 
and  after  the  country  as  a  whole  may  have  changed  its  mind 
regarding  the  advisability  of  making  the  change.  It  is 
unnecessary  to  say  that  an  arrangement  such  as  this  is 
hardly  a  satisfactory  one. 

The  Revision  and  Amendment  of  Constitutions  of  Au- 
tocracies.—  In  governments  of  an  autocratic  type  the  prob- 
lem of  constitutional  change  is  also  a  special  one.  Since, 
in  such  governments,  the  source  of  all  authority  is  the  ruler, 
and  any  constitution  is,  legally,  but  a  document  issued  by  him 
declaring  that  he  will  exercise  his  powers  in  the  manner 


THE  MODIFICATION  OF  CONSTITUTIONS      141 

therein  set  forth,  it  follows  that  no  change  in  this  document 
can  be  made  except  with  his  approval.  In  an  Autocracy, 
therefore,  the  ruler  is  the  ratifying  authority.  In  respect 
to  the  matter  of  initiating  and  formulating  amendments, 
however,  the  ruler  can,  if  he  sees  fit,  provide  that  such  pro- 
posals for  changes  may  originate  with  some  other  authority 
than  himself,  or  he  may  retain  to  himself  the  whole  power 
of  even  suggesting  changes. 

The  two  leading  autocracies,  Japan  in  the  East  and  Ger- 
many in  the  West,  have  pursued  different  policies  in  this 
respect.  The  former  has  adhered  rigidly  to  the  principle 
that  the  whole  constitution  determining  power  resides  in  the 
ruler,  though  a  certain  cooperation  in  the  work,  where  the 
ruler  believes  a  change  is  desirable,  is  given  to  the  legisla- 
tive branch  of  the  government.  Its  constitution  thus  pro- 
vides that  all  proposals  for  amendment  of  the  constitution 
must  originate  with  the  ruler.  It  reads  (Art.  LXXIII)  : 

When  it  may  become  necessary  in  future  to  amend  the  provisions 
of  the  present  constitution  a  project  to  that  effect  shall  be  submitted 
to  the  Imperial  Diet  by  imperial  order. 

In  Germany,  on  the  other  hand,  provision  is  made  for  the 
origination,  consideration,  formulation  and  adoption  of  con- 
stitutional amendments  in  precisely  the  same  manner  as  ordi- 
nary legislative  proposals.  The  constitution  thus  provides 
(Art.  78)  : 

Amendments  of  the  constitution  shall  be  made  by  legislative 
enactment.  They  shall  be  considered  as  rejected  when  14  votes 
are  cast  against  them  in  the  Bundesrat. 

The  provisions  of  the  constitution  of  the  Empire  by  which  cer- 
tain rights  are  secured  to  particular  states  of  the  Union  in  relation 
to  the  whole  may  be  amended  only  with  the  consent  of  the  states 
affected. 


142      THE  GOVERNMENT  OF  MODERN  STATES 

Under  the  constitutional  system  of  Germany  the  Em- 
peror, as  King  of  Prussia,  controls  absolutely  the  14  votes 
of  Prussia  in  the  Bundesrat.  The  effect  of  the  foregoing 
provision,  therefore,  is  that,  though  proposals  for  the 
amendment  of  the  constitution  may  originate  and  receive 
consideration  in  the  same  manner  as  any  matters  of  legis- 
lation, no  change  can  be  made  except  as  it  receives  the 
approval  of  the  Emperor.  He  thus  has  an  absolute  veto 
upon  all  constitutional  changes. 

Futility  of  the  Attempt  to  Declare  Certain  Provisions 
of  a  Constitution  Unamendable. —  Before  leaving  this 
subject  it  is  of  interest  to  note  that  in  a  few  cases  constitu- 
tion framers,  while  providing  a  method  whereby  the  con- 
stitution framed  by  them  might  be  amended,  have  sought  to 
except  certain  features  of  the  constitution  from  the  opera- 
tion of  these  provisions  and  to  declare  them  unamendable. 
Thus  Article  V  of  our  federal  constitution,  which  deter- 
mines the  manner  in  which  its  provisions  may  be  amended, 
contains  the  following  proviso : 

Provided  that  no  amendment  which  may  be  made  prior  to  the 
year  one  thousand  eight  hundred  and  eight  shall  in  any  mani.er 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article  (those  relative  to  the  slave  trade  and  capitation  taxes)  and 
that  no  state  without  its  consent  shall  be  deprived  of  the  equal  suf- 
frage in  the  Senate. 

The  first  of  these  provisions  as  is  seen  was  declared  to  be 
but  temporary.  The  latter,  however,  represents  an  effort  to 
make  practically  unamendable  one  of  the  most  vital  features 
of  our  whole  constitutional  system,  that  which  gives  to  each 
state  no  matter  what  its  size  and  population  equal  repre- 
sentation in  the  Senate. 

A  like  attempt  was  made  to  make  certain  provisions  of 


THE  MODIFICATION  OF  CONSTITUTIONS      143 

the  French  constitution  unamendable  by  an  amendment  to 
the  constitutional  laws  adopted  August  14,  1884.  This  was 
done  by  adding  to  Section  8  of  the  Constitutional  Law  on 
the  Organization  of  the  Public  Powers  of  February  25, 
1875,  the  following: 

The  republican  form  of  government  shall  not  be  made  the  subject 
of  a  proposed  revision.  Members  of  families  that  have  reigned  in 
France  are  ineligible  to  the  presidency  of  the  Republic. 

Another  example  of  where  an  attempt  was  made  to  make 
certain  features  of  a  constitution  unamendable  is  furnished 
by  the  Provisional  Constitution,  of  China  promulgated  on 
May  i,  1914.  That  document  declares  that  stipulations 
that  had  been  promulgated  determining  the  treatment  of  the 
late  Emperor,  the  Imperial  Clan,  and  the  Manchus,  Mon- 
gols, Mohammedans  and  Thibetans  "  shall  never  be  modi- 
fled." 

It  must  be  evident  that,  though  provisions  of  this  charac- 
ter may  tend  to  prevent  the  changes  prohibited,  they  by  no 
means  guarantee  that  they  will  not  be  made  and  that  by  a 
strictly  legal  method  of  procedure.  Should  the  time  ever 
arrive,  for  example,  when  the  people  of  the  United  States 
were  firmly  convinced  that  the  present  system  of  equal  rep- 
resentation of  the  states  in  the  Senate  was  inequitable,  not 
consonant  with  the  then  existing  ideas  of  nationality,  or 
otherwise  unsatisfactory,  all  that  would  be  required  would 
be  the  repeal  of  this  provision  prohibiting  the  change  by  the 
ordinary  method  of  amending  the  constitution.  This 
amendment  having  been  made,  a  further  amendment  could 
then  be  adopted  modifying  the  provisions  of  the  constitu- 
tion dealing  with  the  composition  and  manner  of  election  of 
the  members  of  the  Senate. 

The    Informal    Modification    of    Constitutions. —  In 


144     THE  GOVERNMENT  OF  MODERN  STATES 

the  foregoing  we  have  considered  the  manner  in  which  gov- 
ernmental systems  undergo  modification  as  the  result  of 
formal  changes  deliberately  made  in  their  constitutional 
documents.  We  are  now  to  consider  how  equally  far- 
reaching  changes  may  be  effected  in  such  systems  by  a 
purely  informal  and,  as  it  were,  unconscious  change  made 
in  the  manner  in  which  these  systems  are  made  to  work  in 
practice.  The  method  here  to  be  considered  is  essentially 
the  one  by  which  England  evolved  her  constitutional  system. 

For  many  years  it  was  believed  that  England,  with  her 
unwritten  constitution,  had  a  great  advantage  over  other 
States,  with  their  written  constitutions,  in  the  fact  that  her 
system  was  susceptible  to  constant  evolutionary  changes,  as 
new  conditions  and  ideas  developed,  while  those  of  other 
States  were  not.  Closer  study,  however,  has  revealed  the 
fact  that  all  constitutional  systems,  whether  possessing  writ- 
ten constitutions  or  not,  are,  if  viewed  in  their  'practical 
operation,  undergoing  changes  in  this  way.  Of  no  country 
is  this  more  true  than  of  the  United  States,  which,  among 
all  countries,  is  supposed  to  have  the  most  rigid  of  consti- 
tutions. This  is  illustrated,  not  only  in  the  constantly 
changing  construction  placed  upon  the  powers  of  govern- 
ment through  decisions  of  our  courts,  but  in  the  develop- 
ment of  political  institutions  and  practices  which  profoundly 
modify  our  system  of  government  in  its  actual  operation. 
These  institutions  and  practices  are  usually  designated  as 
extra-constitutional  or  extra-legal  since  they  find  no  recog- 
nition in  the  constitution  and  only  to  a  slight  degree  in 
formally  enacted  laws. 

Probably  the  most  striking  example  of  such  a  change  is 
presented  in  the  manner  in  which  the  machinery  provided 
by  the  constitution  for  the  election  of  the  President  and 
Vice-President  has  been  made  to  work  in  practice.  The 


THE  MODIFICATION  OF  CONSTITUTIONS      145 

system  for  the  election  of  these  officers,  as  provided  for  by 
the  constitution,  is  that  the  states  shall  select,  in  such  manner 
as  they  see  fit,  electors  equal  in  number  to  the  number  of 
Senaiors  and  Representatives  to  which  they  are  entitled  in 
Congress  and  that  these  electors  should  assemble  in  their 
respective  states  and  make  known  their  choice  for  a  Presi- 
dent and  Vice-President.  If  no  person  receives  a  majority 
of  the  votes  cast  a  selection  is  then  to  be  made  by  the  House 
of  Representatives  from  among  a  certain  number  of  candi- 
dates having  received  the  highest  number  of  votes.  It  was 
the  clear  intent  of  the  framers  of  the  constitution  that  the 
duty  of  making  a  choice  of  these  officers  should  rest  with 
these  bodies,  and  that,  in  doing  so,  they  should  use  their  own 
best  judgment  as  to  who  was  most  worthy.  In  providing 
this  method  it  was  deliberately  intended  to  avoid  the  system 
of  electing  a  President  and  Vice  President  by  popular  vote. 
As  is  well  known  this  intent  has  been  wholly  defeated.  By 
developing  a  system  under  which  electors  pledged  to  vote  for 
a  designated  candidate  are  selected  by  popular  vote,  the 
President  and  Vice  President  are  now  in  fact  elected  by 
what  amounts  to  a  popular  vote. 

Another  example  of  the  informal,  or  extra-constitutional, 
development  of  political  institutions  is  found  in  the  Presi- 
dent's Cabinet  as  now  constituted.  No  such  body  is  pro- 
vided for  either  by  the  constitution  or  any  law.  It  has 
developed  solely  as  the  result  of  the  action  of  successive 
Presidents  who  have  felt  the  need  of  securing  in  this  way 
the  collective  advice  of  the  chief  administrative  officers  of 
the  government.  Legally,  the  President  is  under  no  obliga- 
tion to  make  use  of  any  such  body  and,  if  he  does,  is  free 
to  determine  whom  he  shall  make  members  of  it.  Actually, 
however,  practice  in  respect  to  the  composition  and  functions 
of  this  body  has  so  hardened  as  now  to  have  almost  the  same 


146      THE  GOVERNMENT  OF  MODERN  STATES 

force  as  though  the  character  and  duties  of  this  body  were 
determined  by  express  provisions  of  the  constitution. 

Most  important  of  all  political  institutions  thus  infor- 
mally brought  into  existence  is,  however,  that  of  political 
parties.  From  beginning  to  end  the  constitution  makes  no 
reference  to  any  such  bodies.  There  was  in  fact  no  idea  on 
the  part  of  the  framers  of  the  constitution  that  such  bodies 
would  play  any  important  part  in  our  political  life.  In  so 
far  as  thought  was  given  to  the  subject  at  all,  parties  were 
looked  upon  as  factions  dangerous  to  the  welfare  of  the 
Republic.  It  is  hardly  necessary  for  us  to  point  out  how 
vital  a  part  these  bodies  now  play,  not  only  in  the  political 
life  of  the  nation,  but  in  the  actual  conduct  of  governmental 
affairs.  Not  the  first  beginning  could  be  made  in  compre- 
hending our  real  governmental  system  except  as  we  under- 
stand the  principles  underlying  the  organization  and  opera- 
tion of  these  bodies.  They  constitute  as  essential  parts  of 
such  system  as  if  they  were  expressly  provided  for  in  the 
constitution.  We  shall  consequently  have  to  devote  a  con- 
siderable amount  of  attention  to  them  in  a  later  chapter. 


PART  IV 

THE  DETERMINATION  OF  THE 

SCOPE  AND  POWERS  OF 

GOVERNMENT 


CHAPTER  VIII 

THE   JURISDICTION    OF   GOVERNMENT 

In  an  Autocracy  or  a  Democracy  sovereignty  both  resides 
in  and  is  exercised  by  the  same  agency.  In  a  Representa- 
tive Government  sovereignty  is  possessed  by  one  body,  the 
people  organized  as  an  electorate,  and  is  exercised  by  an- 
other—  the^g^vfinjnienL  The  relationship  that  exists  be- 
tween these  two  bodies  is  that  of  principal  and  agent.  It  is 
of  prime  importance  that  this  relationship  of  principal  and 
agent  which  exists  between  a  sovereign  electorate  in  a  Rep- 
resentative Government  and  its  government  should  never  be 
lost  sight  of.  The  powers  of  the  sovereign  electorate  are 
absolutely  without  limitation.  The  government,  on  the 
other  hand,  is  but  a  corporation  agency  created  by  the  elec- 
torate to  act  for  it.  Like  all  corporations  it  thus  has  no 
inherent  powers.  It  can  only  do  those  things  which  it  is 
specifically  authorized  to  do  and  those  things  it  must  do  in 
accordance  with  the  provisions  and  limitations  set  forth  in 
its  charter  or  constitution. 

Dual  Function  of  a  Constitution:  Determination  of 
Jurisdiction  of  Government  and  Form  of  Government. 
—  With  the  foregoing  in  mind,  it  is  evident  that  a  consti- 
tution has  two  clearly  distinguishable  functions  to  perform : 
(i)  It  must  set  forth  the  extent  to  which  power  to  act  is 
conferred  upon  an  agent,  and  (2)  it  must  determine  the 
manner  in  which  this  power  shall  be  exercised.  Sover- 
eignty we  have  seen  connotes  absolute  unlimited  power.  By 
this  is  meant  not  merely  full,  unlimited,  political  power,  but 

149 


150      THE  GOVERNMENT  OF  MODERN  STATES 

full  power  to  do  any  act  that  is  within  the  range  of  physical 
possibility.  From  the  standpoint  of  sovereignty  there  is  no 
distinction  between  political  and  other  powers.  This  arises 
from  the  very  nature  of  sovereignty.  Supreme  power  must 
rest  somewhere  and  in  a  State  it  rests  with  the  possessor  of 
legal  sovereignty.  Now  political  action  means  collective 
action,  the  determination  of  conduct  by  a  general  will.  To 
the  extent  to  which  it  is  exercised  it  carries  with  it  the  sub- 
ordination of  the  individual  will,  the  control  of  individual 
action.  It  represents  thus  a  direct  limitation  upon  the  free- 
dom or  liberty  of  the  individual,  as  an  individual,  to  do  as 
he  chooses. 

Now  all  people,  having  reached  the  stage  of  progress 
where  Popular  Government  is  demanded,  are  unwilling  to 
accept  the  idea  that  their  conduct  shall  be  subject  in  all  re- 
spects to  a  general,  collective  control.  They  feel  that  there 
are  certain  matters  which  each  individual  should  deter- 
mine for  himself.  To  hold  otherwise  would  mean  to  sub- 
ject themselves  to  a  control  as  complete  as  that  which  has 
ever  existed  under  the  most  absolute  and  despotic  of  Mon- 
archies. This  being  so,  it  is  evident  that  every  sovereign 
electorate,  in  providing  for  the  establishment  of  a  govern- 
ment to  act  for  it  in  respect  to  the  conduct  of  political  affairs, 
is  called  upon  to  make  a  momentous  decision.  Though  it 
cannot  divest  itself  of  one  atom  of  its  own  inherent,  unlim- 
ited powers,  it  can  decide  upon  the  extent  to  which  it  will 
confer  the  right  to  exercise  these  powers  upon  its  agent,  the 
government.  The  issue  here  presented  to  it  is  thus,  whether 
it  will,  or  will  not,  draw  a  distinction  between  those  acts 
which  shall  be  subject  to  governmental  regulation  and  those 
which  shall  be  left  to  individual  determination;  and,  if  it 
decides  to  make  the  distinction,  the  lines  along  which  it  shall 
be  made.  To  state  this  in  another  way,  it  has  to  determine 


THE  JURISDICTION  OF  GOVERNMENT      151 

.e  relative  jurisdictions  of  the  government  and  the  indi- 
vidual. This  issue  is  often  stated  as  one  between  the  indi- 
vidual and  the  State.  This  is  a  wholly  erroneous  form  of 
statement.  No  such  issue  can  arise  between  the  State  and 
the  individual.  The  State  is  legally  omnipotent.  The  issue 
is  one  between  the  government  and  the  individual ;  and  it  is 
the  State,  acting  through  its  proper  organ,  that  decides  the 
issue. 

In  seeking  thus  to  delimit  the  two  fields  of  governmental 
and  individual  authority,  two  methods  are  open:  (i)  the 
powers  of  government  may  be  enumerated  and  accurately 
defined;  or  (2),  a  full  grant  of  authority  may  be  given  sub- 
ject to  certain  specified  limitations.  The  latter  is  the  method 
almost  universally  employed.  The  attempt,  in  other  words, 
is  made  to  state  the  things  which  shall  be  deemed  to  be 
matters  purely  of  individual  determination.  This  state- 
ment constitutes  what  are  popularly  known  as  "  individual 
rights  "  or  "  liberties,"  or  "  constitutional  guarantees." 

Twofold  Character  of  the  Problem  of  Determining 
Jurisdiction  of  Government. —  This  problem  of  determin- 
ing what  the  government  shall  have  authority  to  do,  and 
what  it  shall  not,  has  two  phases :  ( i )  that  of  determining 
substantively  the  limitations  that  shall  be  placed  on  the 
powers  of  government;  and,  (2)  that  of  the  means  that 
shall  be  employed  in  setting  forth  these  limitations  and 
making  provision  for  their  enforcement. 

Three  Methods  of  Providing  for  the  Guarantee  of 
Individual  Rights. —  Examination  of  the  methods  actually 
adopted  by  States  in  providing  for  the  guarantee  of  indi- 
vidual rights,  shows  that  action  may  be  had  in  three  ways : 
(i)  the  framers  of  the  constitution  may  attempt  to  state 
these  rights  in  definite  form  in  the  constitution  and  thus 
impose  strict  limitations  upon  the  government  in  respect  to 


152      THE  GOVERNMENT  OF  MODERN  STATES 

them;  or,  (2)  they  may  make  a  general  statement  of  them 
in  the  constitution,  but  provide  that  they  shall  subsequently 
be  more  accurately  defined,  and  the  conditions  under  which 
they  shall  be  valid  be  more  closely  determined,  by  the  gov- 
ernment itself,  acting  in  its  law-making  capacity;  or,  (3) 
they  may  refrain  from  all  mention  of  them  in  the  constitu- 
tion and  thus  leave  the  question  wholly  one  for  legislative 
determination.  These  three  alternatives,  it  will  be  observed, 
are  in  reality  the  two  extremes  of  placing  absolute  limitation 
upon  the  powers  of  the  government,  of  placing  no  limita- 
tion at  all,  and  a  compromise  between  the  two. 

The  Method  of  the  United  States  That  of  Definite 
Specification  in  Its  Constitution. —  Each  of  these  three 
policies  has  been  followed  by  one  or  more  leading  nations. 
Of  nations  which  have  followed  the  first  policy,  the  leading 
example  is  the  United  States.  In  the  case  of  this  State,  the 
people,  in  framing  both  their  federal  constitution  and  the 
constitutions  of  the  several  constituent  states,  have  incor- 
porated in  those  documents  definite  statements  of  individual 
rights  in  such  a  form  as  to  remove  absolutely  from  the  gov- 
ernment practically  all  power  to  take  action  representing  in 
any  way  an  infringement  of  them.  Neither  the  President 
nor  Congress,  nor  the  two  combined,  can  perform  any  act 
interfering  with  these  rights  as  so  stated.  Effective  means, 
moreover,  are  provided  through  the  creation  of  an  independ- 
ent judiciary,  through  which  the  people  can  protect  them- 
selves against  any  such  violation  should  it  be  attempted. 

Were  these  rights  of  an  absolute  character,  the  policy  thus 
pursued  by  the  United  States  undoubtedly  represents  the  one 
that  should  be  followed  by  all  nations  placing  a  value  upon 
these  guarantees  of  individual  liberty.  This,  however,  is 
not  the  case.  There  are  many  cases  where  the  rights  ought 
to  be  subject  to  qualifications  and  limitations,  if  the  interests 


THE  JURISDICTION  OF  GOVERNMENT      153 

of  others  and  of  the  general  public  are  not  to  suffer.  This 
statement  has  been  abundantly  proven  by  the  experience  of 
the  United  States  in  attempting  to  operate  under  these  pro- 
visions. It  is  now  the  best  legal  opinion  in  the  United 
States  that,  not  only  has  the  statement  of  these  rights,  in 
the  absolute  form  in  which  they  appear  in  the  federal  and 
state  constitutions,  led  to  an  enormous  amount  of  litigation, 
but  that  the  hands  of  the  governments  have  been  seriously 
tied  in  their  efforts  to  introduce  legal  and  social  reforms 
urgently  demanded  by  the  people  themselves.  So  serious  is 
the  situation  that  it  is  almost  impossible  to  enact  any  impor- 
tant social  legislation  without  having  its  legal  validity  imme- 
diately challenged  in  the  courts.  The  government  and  the 
people  thus  find  themselves  in  the  position  where,  in  seeking 
to  solve  their  economic  and  industrial  problems,  they  have  to 
ask  themselves,  not  merely  what  do  they  want  to  do,  but 
what,  in  view  of  our  constitutional  provisions,  is  it  possible 
for  them  to  do. 

The  Method  of  England  That  of  Refraining  from  a 
Definite  Statement  of  Individual  Rights. —  Of  nations 
which  have  gone  to  the  other  extreme,  and  imposed  no  limi- 
tations upon  the  legal  powers  of  the  government  to  take 
action  affecting  these  rights,  the  outstanding  example  is 
Great  Britain.  Due,  partly  to  the  fact  that  this  country  has 
no  written  constitution,  but  chiefly  to  the  doctrine  of  the 
supremacy  of  Parliament,  that  constitutes  one  of  the  root 
principles  of  the  British  political  system,  the  government  is 
subject  to  no  legal  limitations  upon  its  powers  in  respect  to 
individual  rights ;  nor,  for  that  matter,  in  regard  to  any  other 
action.  Legally,  thus,  Great  Britain  has  a  government  with 
powers  as  despotic  as  those  ever  possessed  by  any  oriental 
ruler.  There  is  no  act,  no  matter  how  arbitrary,  discrim- 
inatory, or  unjust  it  may  be,  which  the  British  government 


154      THE  GOVERNMENT  OF  MODERN  STATES 

cannot  legally  perform.  Legally,  therefore,  the  personal 
and  political  rights  of  the  individual  in  Great  Britain  are 
absolutely  without  formal  protection  against  the  govern- 
ment. 

Though  this  is  the  situation  in  Great  Britain,  from  the 
strictly  legal  standpoint,  it. is  hardly  necessary  for  us  to  say 
that,  actually,  the  rights  of  the  individual  are,  in  that  coun- 
try, respected  as  in  few  other  nations.  This  results  pri- 
marily from  the  fact  that  for  centuries  these  rights  have  con- 
stituted a  fundamental  part  of  the  ordinary  law  of  the  land, 
and  as  such,  are  protected  and  enforced  by  the  courts  as  are 
all  other  laws.  This  alone,  however,  would  not  afford  an 
adequate  protection.  Subject  as  they  are  to  modification  or 
abolition  at  any  time  by  act  of  the  government,  the  real 
guarantee  that  they  will  not  be  violated  rests  in  the  deep 
rooted  belief  of  the  people  that  these  rights  are  funda- 
mental, and  in  the  power  that  the  people  have  to  discipline 
and,  if  need  be,  overthrow  any  administration  interfering 
with  these  rights  in  a  way  that  does  not  meet  with  their 
approval. 

The  Methods  of  France  and  Germany  Analogous  to 
That  of  England. —  Though  no  other  of  the  nations  is  in 
precisely  the  same  situation,  as  regards  this  matter  as  Great 
Britain,  yet  those  nations  which  make  no  real  distinction  be- 
tween the  exercise  of  constituent  and  of  legislative  powers ; 
that  is,  which  permit  the  government  by  any  process  to 
amend  the  constitution  and  thus  to  determine  its  own  powers, 
must  be  deemed,  as  regards  this  feature  of  their  constitu- 
tional system,  to  belong  to  the  same  category  as  that  country. 
To  this  class,  therefore,  belong  both  France  and  the  German 
Empire.  Not  only  do  the  constitutions  of  these  two  coun- 
tries make  but  slight  reference  to  individual  rights,  but  both 
permit  of  their  amendment  by  ordinary  legislative  proced- 


THE  JURISDICTION  OF  GOVERNMENT     155 

ure,  cr  what  amounts  to  nearly  the  same  thing,  and  neither 
provide  any  effective  means  by  which  any  unconstitutional 
act  on  the  part  of  the  government  can  be  set  aside. 

Comparison  of  the  Two  Methods. —  Comparing  these 
two  extremes  of  policy,  it  will  be  seen  that  each  has  its 
advantages  and  disadvantages.  On  the  one  hand,  the  system 
of  the  United  States  affords  a  guarantee  of  private  rights 
that  is  largely  lacking  in  the  other  system.  In  securing  this 
advantage,  however,  it  has  subjected  itself  to  the  disadvan- 
tage of  unduly  tying  the  hands  of  the  government  and  of 
making  it  difficult,  if  not  impossible,  to  control  abuses  arising 
from  an  improper  use  of  such  rights.  The  system  of  non- 
constitutional  guarantees,  on  the  other  hand,  while  avoiding 
these  disadvantages,  places  these  rights  on  no  higher  plane 
than  any  other  rights,  and  thus  fails  to  secure  that  protec- 
tion of  these  fundamental  liberties  which  common  opinion 
demands  shall  be  specially  safeguarded. 

The  Method  of  Switzerland,  Japan  and  China  That  of 
the  Statement  of  Rights  in  the  Constitution  Subject  to 
Further  Legislative  Determination. —  These  relative  ad- 
vantages and  disadvantages  have  been  fully  appreciated  by 
those  nations  which  have,  in  recent  years,  been  confronted 
with  the  problem  of  framing  or  revising  their  constitutional 
systems.  They  have  consequently  sought  to  discover  a 
medium  or  compromise  between  the  two  by  which,  as  far  as 
practicable,  the  benefits  of  each  will  be  obtained  and  the 
evils  avoided.  This  they  have  found  in  the  device  of  for- 
mally drafting  and  incorporating  in  their  constitutions  state- 
ments of  these  rights,  but  providing  that  the  government 
shall  have  the  power  to  take  such  action  as  may  be  necessary 
to  prevent  their  abuse  or  to  enable  the  government  to  carry 
out  proper  measures  of  reform  looking  to  the  general  wel- 
fare of  the  community.  This  is  the  policy  that  has  been 


156      THE  GOVERNMENT  OF  MODERN  STATES 

adopted  by  Switzerland,  Japan  and  China.     Thus  the  con- 
stitution of  Switzerland  provides  as  follows : 

The  free  exercise  of  religious  worship  is  guaranteed  within  the 
limits  compatible  with  public  order  and  good  morals.  .  .  . 

The  freedom  of  the  press  is  guaranteed,  nevertheless  the  can- 
tons, by  law,  may  enact  measures  necessary  for  the  suppression  of 
abuses.  Such  laws  shall  be  submitted  for  the  approval  of  the  Fed- 
eral Council.  The  Confederation  may  also  enact  penalties  for  the 
suppression  of  press  offenses  directed  against  it  or  its  authorities. 

Citizens  shall  have  the  right  to  form  associations  provided  that 
there  be  in  the  purpose  of  such  associations  or  in  the  means  which 
they  employ,  nothing  illegal  or  dangerous  to  the  State.  The  can- 
tons by  law  may  take  measures  necessary  to  prevent  the  abuse  of 
this  right. 

The  Japanese  constitution  in  like  manner  carefully  pro- 
vides that  all  the  individual  rights  set  forth  are  subject  to 
further  definition  and  determination  by  law.  Thus,  for 
example,  the  sections  guaranteeing  religious  toleration  and 
freedom  of  speech  read : 

Japanese  subjects  shall,  within  limits  not  prejudicial  to  peace  and 
order,  and  not  antagonistic  to  their  duties  as  subjects,  enjoy  free- 
dom of  religious  belief. 

Japanese  subjects  shall,  within  the  limits  of  the  law,  enjoy  liberty 
of  speech,  writing,  publication,  public  meetings  and  associations. 

Qualifications  of  the  same  character  accompany  the  enum- 
eration of  all  the  other  rights  guaranteed  by  the  constitution. 
A  like  form  of  statement  is  employed  in  the  constitution  of 
China. 

It  is  a  mistaken  view  to  hold  that  because  these  rights  can 
be  qualified,  or  their  exercise  regulated  by  legislation,  that  no 
advantage  has  been  gained  by  their  statement  in  the  consti- 
tution. Tn  the  first  place,  it  is  a  matter  of  no  little  signifi- 
cance that  a  people  should,  in  this  most  formal  manner, 


THE  JURISDICTION  OF  GOVERNMENT      157 

express  their  belief  in  the  importance  of  these  rights.  Such 
a  declaration  cannot  fail  to  exercise  a  profound  influence 
upon  the  government  in  legislating  regarding  them.  In  the 
second  place,  it  will  be  noted  that  these  rights  are  effective 
except  as  they  may  be  qualified  by  express  legislative  action. 
Now  the  chief  end  sought  by  a  statement  of  these  rights  is 
to  do  away  with  the  old  regime  of  arbitrary  infringement 
of  them  by  an  absolute  monarch  or  his  officers.  The  provi- 
sion that  these  rights  can  be  curtailed  only  by  legislative 
action  accomplishes  this  purpose.  It  should  be  borne  in 
mind,  moreover,  that  the  guarantee  of  such  rights  has  not 
the  same  importance  in  a  State  whose  government  rests 
upon  the  principle  of  popular  sovereignty  that  it  has  in  one 
whose  government  rests  upon  the  basis  of  sovereignty  being 
vested  in  the  hands  of  an  hereditary  and  irresponsible  mon- 
arch. The  provision,  in  a  State  having  the  former  consti- 
tutional basis,  that  these  rights  can  be  regulated  by  legisla- 
tion is  thus  only  providing  that  the  people,  acting  through 
their  representatives,  can  take  such  action  in  reference  to 
them  as  they  may  from  time  to  time  deem  wise  and  proper. 

The  Nature  of  Individual  Rights. —  Theoretically  the 
attempt  to  divide  the  whole  domain  of  human  activities  into 
£•  two  fields,  the  one  embracing  acts  subject  exclusively  to 
individual  determination  and  the  other  to  acts  which  are 
open  to  determination  by  the  government,  and  to  prescribe 
the  conditions  that  must  be  observed  by  the  latter  in  exer- 
cising the  powers  that  are  assigned  to  it,  open  a  boundless 
range  of  action  on  the  part  of  different  States.  Actually, 
however,  modern  States  have  reached  a  more  or  less  sub- 
stantial agreement  in  respect  to  the  character  of  the  provi- 
sions that  should  be  made. 

Individual  Liberty. —  In  the  front  rank  of  restrictions 
that  most  nations  now  believe  should  be  imposed  upon  the 


158      THE  GOVERNMENT  OF  MODERN  STATES 

powers  of  government  are  those  having  for  their  purpose 
to  guarantee  to  the  individual  the  enjoyment  of  certain 
fundamental  liberties  free  from  governmental  interference. 
The  more  important  of  these  liberties  are :  freedom  of  reli- 
gious belief,  freedom  of  thought  and  its  expression  in 
speech,  writing  and  publication,  freedom  of  movement  and 
freedom  from  arbitrary  arrest  and  imprisonment. 

The  enumeration  of  these  points,  in  respect  to  which  it  is 
generally  held  that  individuals  should  be  free  from  govern- 
mental control,  shows  the  enormous  change  that  has  taken 
place  within  the  past  few  centuries  in  respect  to  this  question 
of  the  relation  that  should  exist  between  the  individual  and 
his  government.  In  former  times  no  one  of  these  liberties 
existed.  Governments  deemed  it  to  be,  not  only  within  their 
province,  but  their  duty  to  prescribe  the  religious  beliefs  of 
their  citizens,  to  control,  in  so  far  as  they  could,  thought  and 
its  expression  in  any  manner,  to  regulate  the  movements  of 
individuals  and  to  arrest  and  imprison  them  as  they  deemed 
such  action  desirable.  The  greatest  progress  ever  made  in 
the  political  field  is  the  abolition  of  this  condition  and  the 
establishment  of  the  principle  that  there  are  certain  things 
which  should  be  left  as  far  as  possible  to  individual  deter- 
mination. 

Property  Rights. —  Next  to  personal  liberty  man  in  gen- 
eral prizes  the  right  to  own  and  freely  dispose  of  property. 
A  man's  liberty  might  in  practice  avail  him  little  if  a  supe- 
rior authority  could  at  any  time  deprive  him  of  the  fruits 
of  his  labors.  In  the  Autocracies  of  the  past,  tyranny  and 
abuse  of  power  by  the  government  has  been  displayed  as 
much  in  the  arbitrary  seizure  of  the  property  of  subjects  as 
in  the  seizure  of  their  persons.  It  is  not  to  be  wondered  at, 
therefore,  that  peoples  in  the  framing  of  their  governmental 
charters  should  seek  to  incorporate  in  them  provisions  aim- 


THE  JURISDICTION  OF  GOVERNMENT      159 

ing  to  insure  that  their  property  rights,  as  well  as  their 
rights  to  personal  freedom,  shall  be  secure  against  arbitrary 
infringement  by  the  government.  In  the  federal  constitu- 
tion of  the  United  States  this  finds  expression  in  the  provi- 
sions : 

nor  shall  (any  person)  ...  be  deprived  of  life,  liberty  or  prop- 
erty without  due  process  of  law;  nor  shall  private  property  be 
taken  for  public  use  without  just  compensation.  (Fifth  Amend- 
ment) . 

With  the  general  purpose  of  these  provisions  to  ensure 
that  a  man's  property  shall  not  be  taken  away  from  him 
except  in  a  legal  manner,  and  after  just  compensation  has 
been  given  to  him,  no  one  can  find  fault.  In  their  practical 
operation,  however,  these  provisions  have  in  many  respects 
worked  badly  and  have  resulted  in  tying  the  hands  of  the 
government  in  efforts  to  effect  social  reform  to  an  extent 
not  at  all  contemplated  when  these  amendments  were 
adopted.  This  unfortunate  condition  has  arisen  as  the  re- 
sult of  the  interpretation  that  the  courts  have  given  to  the 
expressions  "  property  "  and  "  due  process  of  law."  The 
former  of  these  terms  has  been  held  to  include  the  right  of 
individuals  to  make  contracts.  As  a  consequence  of  this 
interpretation  many  attempts  on  the  part  of  both  the  federal 
and  state  governments  to  improve  the  conditions  of  the 
laboring  classes  by  prohibiting  employers  from  requiring 
excessive  hours  of  labor,  or  imposing  other  conditions  be- 
lieved to  be  detrimental  to  the  health  of  employees  have  been 
defeated  by  the  courts  declaring  that  the  laws  imposing  these 
restrictions  were  invalid  as  constituting  a  violation  of  the 
right  of  individuals  freely  to  contract  relative  to  the  condi- 
tions under  which  their  labor  will  be  given. 

The  term  "  due  process  of  law  "  has  been  given  the  mean- 


160      THE  GOVERNMENT  OF  MODERN  STATES 

ing  of  action  by  a  court  or  judicial  tribunal.  This  has 
greatly  complicated  the  problem  of  regulating  the  rates  and 
conditions  of  service  of  public  service  corporations  such  as 
railroads,  telephone,  telegraph  and  street  railway  companies, 
and  the  like. 

The  situation  would  have  been  an  impossible  one  but  for 
the  fact  that  appeal  could  be  made  to  certain  other  legal 
principles  of  our  jurisprudence,  the  most  important  of  which 
are  those  relating  to  the  "  general  police  powers  "  of  the 
State  and  to  the  special  status  of  industries  deemed  to  be 
"  affected  with  a  public  interest."  By  giving  a  broad  inter- 
pretation to  these  principles  the  block  to  social  legislation 
brought  about  by  the  construction  given  to  "  property  "  and 
"  due  process  of  law  "  has  been  in  a  measure  overcome. 

The  condition,  however,  remains  that  almost  every  impor- 
tant phase  of  social  legislation  has  to  run  the  gauntlet  of  the 
courts,  and  that  it  is  only  by  fighting  a  pitched  battle  between 
the  constitutional  provisions  relative  to  property  rights  and 
the  general  legal  principles  of  police  powers  of  the  State  and 
industries  affected  with  a  public  interest  that  any  progress 
can  be  made. 

The  whole  subject  of  what  constitutes  property,  what  due 
process  of  law,  what  a  legitimate  exercise  of  police  powers, 
what  an  industry  affected  with  a  public  interest,  constitutes 
one  of  the  most  important  branches  of  constitutional  law  in 
the  United  States  and  the  history  of  the  doctrines  involved 
furnishes  one  of  the  most  interesting  chapters  in  the  whole 
history  of  Anglo-American  jurisprudence.  It  has  been  pos- 
sible for  us  here  only  to  make  bare  mention  of  it. 

Equality  Before  the  Law. —  Next  in  importance  to  the 
enjoyment  of  personal  liberty  and  the  right  to  own  prop- 
erty free  from  governmental  interference,  must  be  counted 
the  right  of  individuals  to  an  equality  of  treatment  before 


THE  JURISDICTION  OF  GOVERNMENT      161 

the  law.  That  people  is  only  partly  free  where  discrimina- 
tions exist  between  different  classes  in  respect  to  the  posses- 
sion of  rights,  the  extent  to  which  they  are  called  upon  to 
contribute  to  the  support  of  the  government,  or  their  right 
to  appeal  to  the  government  for  the  protection  of  their 
rights.  In  many  respects  the  most  important  feature  of  the 
French  Revolution  was  the  sweeping  away  at  one  stroke  of 
the  great  mass  of  special  privileges,  restrictions,  monopolies, 
etc.,  which  had  characterized  the  old  regime.  Next  to  the 
establishment  of  the  principle  that  government  should  be  one 
of  law  and  not  of  arbitrary  will  of  a  ruler  the  most  impor- 
tant political  gain  of  all  time  is  the  establishment  of  the 
principle  that  equality  should  exist  in  respect  to  the  rights  of 
all  persons  to  the  enjoyment  of  rights  and  the  protection  of 
the  law. 

Political  Rights. —  Up  to  the  present  we  have  been  con- 
sidering the  question  of  those  rights  which  it  is  held  that 
the  individual,  as  individuals,  should  have.  They  represent 
rights  which  it  is  felt  should  be  guaranteed  against  infringe- 
ment by  the  government.  There  is  another  class  of  rights 
that  concern  the  individual,  not  in  his  personal  character, 
but  as  a  citizen.  They  represent  his  right,  not  for  protec- 
tion against  the  government,  but  affirmatively  to  take  action 
in  reference  to  the  government.  They  constitute  in  a  word 
what  may  be  called  his  political  rights.  Among  such  rights 
are:  the  right  peaceably  to  assembly  for  the  discussion  of 
public  questions  and  other  matters  affecting  their  common 
welfare;  the  right,  individually,  and  collectively,  to  petition 
the  government;  that  is,  to  draft  and  submit  petitions  or 
resolutions  making  known  their  wishes  or  calling  attention 
to  conditions  of  practices  on  the  part  of  the  government 
which  in  their  opinion  constitute  abuses  or  obstacles  in  the 
way  of  national  progress ;  the  right  to  compete  for  and  hold 


162      THE  GOVERNMENT  OF  MODERN  STATES 

office,  the  right  to  the  exercise  of  the  franchise,  etc.  Funda- 
mentally these  rights  have  for  their  purpose  to  guarantee  to 
the  individual  the  right  to  exercise  a  voice  in  respect  to  the 
manner  in  which  his  government  is  organized  and  conducted. 
Of  this  character  are  the  guarantees  contained  in  the  fed- 
eral constitution  of  the  United  States  which  provide  that 
Congress  shall  pass  no  law  abridging  "  the  right  of  the  peo- 
ple peaceably  to  assemble  and  to  petition  the  government  for 
a  redress  of  grievances.'* 

As  in  the  case  of  personal  rights,  these  political  rights, 
though  valid  as  expressions  .of  general  principles,  are  not 
r  absolute  in  the  sense  that  no  limitations  or  restrictions  should 
f  be  placed  on  their  exercise.  Thus,  for  example,  equality  in 
respect  to  the  enjoyment  of  the  electoral  franchise,  the  right 
to  be  elected  to  office,  or  to  compete  for  and  hold  office  by 
appointment,  does  not,  or  should  not,  carry  with  it  the  idea 
that  reasonable  conditions,  such  as  the  possession  of  a  mini- 
mum degree  of  education,  or  certain  technical  qualifications, 
or  a  material  interest  in  the  country,  such  as  is  represented 
by  the  possession  of  property,  may  not  be  imposed  as  a 
condition  precedent  to  the  enjoyment  of  such  rights.  In  like 
manner  the  right  to  assemble  and  to  petition  the  government 
should  be  subject  to  reasonable  regulations  to  ensure  that  it 
is  not  so  exercised  as  to  result  in  disorder  or  improper  at- 
tempts to  intimidate  or  overawe  the  government  authorities 
in  the  proper  discharge  of  their  duties. 

Procedural  Rights. —  The  foregoing  rights  constitute 
what  are  known  as  substantive  rights.  Experience  has 
shown,  or  has  seemed  to  show,  that,  if  the  liberties  of  the 
people  are  to  be  protected  against  the  government,  it  is 
desirable  that  certain  restrictions  should  be  placed  upon  the 
manner  in  which  the  government  should  proceed  in  making 
use  of  the  powers  that  are  granted  to  it.  With  this  end  in 


THE  JURISDICTION  OF  GOVERNMENT      163 

view  many  provisions  have  been  inserted  in  constitutions 
providing  that  governments  shall  proceed  in  a  certai'n  way 
in  performing  their  duties,  or  placing  certain  limitations 
upon  the  general  powers  of  the  government.  These  provi- 
sions have  for  their  purpose  to  guarantee  what  are  known 
as  procedural  rights.  For  the  most  part  they  relate  to  legal 
procedure.  The  United  States  has  gone  much  further  in 
this  direction  than  any  other  country.  Among  constitu- 
tional guarantees  of  this  character  contained  in  the  federal 
constitution  may  be  mentioned  the  following : 

nor  shall  any  State  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law.  (Amendment  XIV.) 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed.  (Art. 
I,  Sec.  9,  paragraph  3.) 

No  State  shall  .  .  .  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts.  (Art.  I,  Sec.  10,  par. 

i.) 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized.  (Amendment  IV.) 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice  put 
in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law.  .  .  .  (Amendment  V.) 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by'  law',  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation;  to  be  confronted 


1 64      THE  GOVERNMENT  OF  MODERN  STATES 

with  the  witnesses  against  him;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defense.  (Amendment  VI.) 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law.  (Amendment  VII.) 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted.  (Amendment 
VIII.) 

No  Rights  Absolute. —  There  is  a  tendency  on  the  part 
of  many  to  look  upon  the  rights  we  have  been  considering 
as  absolute.  This  is  a  mistake.  All  are  subject  to  the 
important  qualification  that  they  are  valid  only  in  so  far  as 
they  are  not  exercised  in  such  a  manner  as  to  interfere  with 
a  like  right  on  the  part  of  other  individuals  or  to  constitute 
a  danger  to  the  State.  Thus  the  highest  right  of  all,  that  to 
life,  is  set  aside  when  the  government  inflicts  the  penalty 
of  death  sentence  for  the  commission  of  high  crimes,  sedi- 
tion, conspiracy  against  the  State  or  treason.  Personal 
freedom  is  abolished  when  persons  are  imprisoned  as  the 
result  of  commission  of  crimes.  Property  is  taken  away  in 
the  form  of  fines  or  compulsory  contributions  in  the  form 
of  taxes  for  the  support  of  the  government;  and  the  right 
to  dispose  of  property  after  death  is  everywhere  regulated 
by  law.  Indirectly  a  government  may  set  a  limit  to,  or 
interfere  with,  the  accumulation  of  property  through  the 
enactment  of  progressive  inheritance,  income  and  property 
taxes.  Though  freedom  of  religious  belief  and  of  thought 
generally  may  not  be  controlled,  its  expression  may  be  regu- 
lated in  many  ways. 

Individual  Rights  Versus  Social  Rights.— This  ques- 
tion of  individual  rights  raises  an  exceedingly  important 


THE  JURISDICTION  OF  GOVERNMENT      165 

question.  This  is  the  extent  to  which  such  rights  should  be 
permitted  when  their  possession  or  exercise  results  in  injury 
to  the  general  welfare.  For  example,  the  right  of  an  indi- 
vidual to  make  such  use  of  his  property  as  long  as  he  does 
not  interfere  with  a  like  right  on  the  part  of  others  may  be 
of  great  value  to  the  individual  as  an  individual;  but  this 
right  may  produce  social  consequences  which  are  in  the 
highest  degree  injurious.  We  see  this  constantly  in  evidence 
in  the  freedom  enjoyed  in  the  United  States  by  individuals  to 
erect  such  houses  as  they  desire  upon  lots  owned  by  them  in 
large  cities.  As  a  result  of  this  freedom  an  individual  by 
erecting  a  business  structure  in  a  residential  quarter  of  a 
city,  or  by  erecting  a  building  out  of  keeping  with  the  charac- 
ter of  structures  already  erected,  may  seriously  damage  the 
general  appearance  of  a  quarter  or  street.  Even  if  the  value 
of  adjacent  property  is  not  depreciated,  the  community  as  a 
whole  has  suffered  damage  through  the  damage  done  to  the 
general  appearance  of  the  city. 

Most  existing  constitutions  in  the  United  States  were 
framed  at  a  time  when  great  intportance  was  attached  to  the 
principles  of  individual  liberty.  No  more  fundamental 
change  has  taken  place  in  western  society  during  the  past 
century  than  the  increasing  importance  that  is  being  at- 
tached to  social  welfare  as  contrasted  with  individual  wel- 
fare, social  rights  and  duties  as  opposed  to  individual  rights 
and  duties.  More  and  more  the  feeling  is  gaining  ground 
that  the  former  should  take  precedence  over  the  latter. 
More  than  this  the  State,  or  rather  the  government,  is  more 
and  more  being  looked  to  as  the  agent  through  which  social 
welfare  should  be  promoted.  Now  the  importance  of  this, 
from  the  present  standpoint,  is  that  the  attempt  to  promote 
social  welfare  brings  the  government  in  many  cases  into 
direct  conflict  with  individual  rights  as  guaranteed  by  the 


1 66      THE  GOVERNMENT  OF  MODERN  STATES 

constitution.  It  is  found  that  in  the  attempt  to  protect  their 
individual  liberties,  the  people  have  tied  their  hands  in  re- 
spect to  the  promotion  of  the  general  welfare.  The  result 
of  this  changed  attitude  of  mind  towards  rights  is  to  open 
again  the  whole  question  of  the  extent  to  which  it  is  desir- 
able to  attempt  to  guarantee  individual  rights  by  constitu- 
tional provisions.  The  question  is  being  raised  whether, 
either  the  attempt  should  not  be  abandoned,  or  that  express 
provision  should  not  be  made  that  individual  rights  must 
give  way  to  social  rights  where  the  two  are  in  conflict. 

Fallacy  in  the  Attempt  to  Justify  the  Guarantee  of  In- 
dividual Rights  by  an  Appeal  to  Natural  Law. —  It  is  a 
fact  well  worth  noting  that  almost  from  the  time  when  men 
began  to  make  politics  a  subject  of  serious  study  they  have 
sought  to  find  a  justification  of  the  State  and  of  State  action 
by  an  appeal  to  some  higher  law.  It  was  thus  by  appeal  to 
the  principle  of  the  divine  right  of  kings  that  Autocracy 
was  defended.  When  Autocracy  was  overthrown  this  ac- 
tion was  justified  by  an  appeal  to  the  doctrine  of  popular 
sovereignty  as  one  corresponding  to  the  inherent  principles 
of  political  justice.  In  like  manner  the  attempt  has  been 
made  to  justify  the  guarantee  of  individual  rights  by  main- 
taining that  these  rights  correspond  to  the  principle  of  nat- 
ural law.  There  can  be  little  doubt  that  it  was  under  the 
influence  of  this  belief  that  the  provisions  guaranteeing 
them  were  inserted  in  our  federal  and  early  state  constitu- 
tions. They  were  constantly  described  as  the  inherent,  in- 
alienable, natural  rights  of  man,  and  are  so  expressly  desig- 
nated in  many  early  documents.  The  argument  that  provi- 
sion for  them  would  advance  the  welfare  and  happiness  of 
the  people  was  not  deemed  to  be  sufficient.  They  had  to  be 
supported  and  justified  by  the  assertion  that  they  were  in 
conformity  with  natural  law. 


THE  JURISDICTION  OF  GOVERNMENT      167 

Though  the  belief  in  the  existence  of  natural  law  still  con- 
stitutes an  important  influence  in  Anglo-Saxon  jurispru- 
dence, the  school  of  natural  law  has  now  largely  lost  its 
influence.  Study  has  shown  that  there  are  no  immutable 
principles  of  human  conduct.  Certainly  it  can  be  shown 
that  none  of  the  rights  constituting  the  subject  of  constitu- 
tional guarantees  are  of  such  an  absolute  character  as  to 
entitle  them  to  the  designation  of  natural  laws.  In  point 
of  fact  it  can  be  shown  that  no  one  of  these  rights,  with  the 
possible  exception  of  freedom  of  religious  belief  and  of 
thought,  with  which,  whether  guaranteed  or  not,  it  is  im- 
possible for  the  government  to  interfere,  no  one  of  these 
rights  can  be  accepted  in  an  unqualified  manner.  Though 
religious  belief  and  the  inner  thoughts  of  a  person  may  be 
respected,  many  cases  arise  where  it  is  desirable  to  control 
individuals  seeking  to  translate  their  convictions  into  ac- 
tions. Complete  freedom  of  speech,  writing  and  publication 
makes  possible  the  evils  of  slander,  libel,  and  the  fostering  of 
sedition,  and  all  modern  governments,  notwithstanding  the 
fact  that  freedom  of  speech  is  made  the  subject  of  a  con- 
stitutional guarantee,  have  passed  laws  limiting  this  freedom 
with  a  view  to  the  prevention  of  these  evils.  Freedom  to 
adopt  any  trade  or  profession  is  surrounded  by  all  sorts  of 
limitations  or  restrictions  having  for  their  purpose  to  ensure 
that  this  freedom  will  not  be  exercised  in  such  a  manner  as 
to  work  injury  to  the  welfare  of  others  or  the  general  pub- 
lic. The  right  to  acquire,  hold  and  transfer  property  is  also 
made  the  subject  of  minute  regulation.  In  like  manner  po- 
litical and  procedural  rights  are  now  held  to  be  ones  which 
must  be  justified  on  the  ground  of  expediency  or  not  at  all. 

We  have  devoted  some  attention  to  this  matter  since  it  is 
one  of  great  practical  importance  at  the  present  time. 
Though  the  school  of  natural  law  is  now  in  its  decline,  the 


i68      THE  GOVERNMENT  OF  MODERN  STATES 

idea  of  natural  rights  still  has  a  strong  hold  upon  the  imagi- 
nation of  the  public  and  there  is  scarcely  a  political  or  legal 
change  which  its  advocates  do  not  seek  to  advance  by  a  con- 
tention that  the  changes  advocated  rest  upon  the  principle  of 
natural  law.  J  The  extent  to  which  this  argument  is  made  to 
do  duty  in  the  movement  for  woman's  suffrage  is  a  striking 
illustration  of  this.  It  is  of  prime  importance  therefore 
that  students  of  politics  should  recognize  the  invalidity  of 
this  argument.  There  may  be  in  a  community  at  any  time  a 
prevailing  belief  in  respect  to  what  constitutes  justice  and 
y  what  is  right,  but  it  is  a  mistake  to  take  the  position  that 
there  are  any  such  things  as  inherent,  natural  rights  that  are 
absolute  under  all  conditions.  Every  provision  of  law 
should  find  its  justification  in  its  intrinsic  merits  and  one  of 
the  merits  may  be  that  it  corresponds  to  the  prevailing  belief 
as  to  what  is  right  and  just.  To  go  further  than  this,  and 
to  attempt  to  apply  such  provisions  to  other  communities 
where  conditions  are  radically  different  as,  for  example, 
would  be  represented  by  the  immediate  conferring  of  all  the 
rights  enjoyed  by  England  and  America  upon  a  people  with 
a  low  degree  of  civilization,  simply  because  they  were  held 
to  correspond  to  natural  law,  would  be  the  height  of  folly 
and  could  not  but  lead  to  disaster. 


CHAPTER  IX 

THE  FUNCTIONS   OF    GOVERNMENT 

In  the  preceding  chapter  we  have  considered  the  problem 
of  the  scope  of  government  from  one  point  of  view  —  that 
of  the  restrictions  and  limitations  that  should  be  imposed 
upon  governments  for  the  purpose  of  preserving  the  exercise 
of  certain  rights  by  individuals  free  from  governmental 
interference.  We  have,  in  other  words,  approached  the 
problem  from  the  standpoint  that  all  things  fall  within  the 
scope  of  government  except  those  things  expressly  prohib- 
ited to  it. 

It  is  evident,  however,  that  this  problem  can  be  approached 
from  the  contrary  standpoint ;  that  of  proceeding  from  the 
position  that,  primarily,  all  activities  are  matters  concerning 
the  individual  and  that  the  government  should  concern  itself 
,  with  those  things  only  which  have  been  expressly  entrusted 
.  to  it.  Approached  from  this  standpoint  the  problem  of 
determining  the  scope  of  government  takes  the  form  of 
attempting  to  determine  the  functions  of  government,  rather 
than  individual  rights.  Just  as  adherents  of  the  school  of 
individual  rights  seek  to  determine  those  rights  which  are 
believed  to  be  inherent,  inalienable,  natural  rights  of  the 
individuals  and  to  guarantee  these  rights  against  infringe- 
ment on  the  part  of  governments  by  inserting  in  the  govern- 
mental charters,  or  constitutions,  what  are  known  as  decla- 
rations or  bills  of  right,  so  persons,  approaching  the  problem 
from  the  contrary  standpoint,  seek  to  determine  what  are 
the  true  functions  of  government  and  to  restrict  the  opera- 
tions of  governments  to  these  fields. 

169 


170      THE  GOVERNMENT  OF  MODERN  STATES 

The  Five  Schools  of  Political  Thought. —  Approaching 
the  problem  of  the  functions  of  governments  from  this 
standpoint,  we  may  distinguish  between  at  least  five  distinct 
schools  according  to  the  attitude  taken  towards  what  con- 
stitutes the  proper  functions  of  government:  (i)  the  anar- 
chistic, (2)  the  individualistic,  (3)  the  collectivistic,  (4)  the 
socialistic,  and  (5)  the  communistic.  The  fundamental  dis- 
tinction between  these  schools  is  that  of  the  attitude  taken  by 
them  in  respect  to  the  relationship  between  the  individual 
and  the  State,  the  extent  to  which  human  conduct  should  be 
determined  by  the  individual  or  the  collective  will. 

The  Anarchistic  School. —  First  in  order  of  considera- 
tion is  the  anarchistic  school.  In  the  popular  mind  an  an- 
archist is  identified  with  one  who  desires  to  destroy  existing 
government  through  the  use  of  the  bomb  and  other  violent 
means.  It  is  quite  true  that  many  adherents  to  this  school 
do  advocate  the  use  of  violence  in  achieving  their  ends.  It 
is  important  to  bear  in  mind,  however,  that  we  are  here 
dealing  only  with  means,  not  the  end  itself.  The  really 
important  thing,  at  least  from  the  standpoint  of  political 
science,  is  the  end  or  the  principle  which  the  users  of  these 
means  seek  to  make  prevail. 

The  anarchistic  school  represents  the  extreme  school  of 
individual  rights.  To  its  adherents,  liberty,  individual  lib- 
erty, is  the  important  thing.  All  coercion  or  compulsion 
such  as  is  implicit  in  government  is  inherently  and  funda- 
mentally wrong  and  not  to  be  justified.  The  anarchist  ap- 
peals from  the  State  law  to  what  he  deems  to  be  a  higher 
law,  the  natural  law  which  gives  to  each  individual  the  full- 
est possible  freedom  to  live  his  life  free  from  restraint  on 
the  part  of  others.  There  are  many  persons  who  belong  to 
this  school  who  do  not  approve  of  the  use  of  violence.  They 
constitute  what  are  known  as  scientific  anarchists.  Prince 


THE  FUNCTIONS  OF  GOVERNMENT         171 

Kropotkine  is  probably  the  most  distinguished  representative 
of  this  class,  and  in  his  writings  one  can  find  the  best  expo- 
sition of  the  philosophy  of  this  school. 

It  is  not  feasible  for  us  here  to  attempt  any  detailed  analy- 
sis of  this  philosophy.  We  may  state,  however,  that  it  is 
the  belief  of  this  school,  not  only  that  the  principles  for 
which  they  stand  are  theoretically  sound,  but  are  susceptible 
of  successful  application  in  practice.  It  is  their  belief  that 
common  action  for  the  general  welfare  should  rest  upon 
voluntary  association  rather  than  state  compulsion.  They 
point  to  the  fact  that  great  branches  of  activities  are  now 
conducted  in  this  way.  Men  form  all  sorts  of  associations 
for  common  action  in  which  the  principle  of  compulsion  is 
absent.  Especially  is  the  great  success  achieved  in  the  field 
of  distributive  cooperation  in  England  and  Europe  gener- 
ally referred  to  as  an  example  of  what  can  be  done  through 
purely  voluntary  association.  In  boards  of  trade,  chambers 
of  commerce,  trade  unions,  and  like  organizations,  are  found 
other  illustrations.1 

The  Individualistic  School. —  Next  in  order  is  the  in- 
dividualistic school.  This  school  has  a  philosophy  similar 
to  that  of  the  anarchists  in  that  both  start  from  the  same 
premise  that  individual  rights  and  freedom  of  action  is  the 
important  thing.  The  two  schools,  however,  part  company 
in  respect  to  their  attitude  towards  the  legitimacy  of  the 
State.  The  anarchist  denies  that  the  State  has  any  right  to 
be  and  that  the  individual  is,  therefore,  justified  in  opposing 
it  as  an  unwarrantable  interference  with  his  rights.  The 
individualist  holds  that  this  might  be  true  if  men  were  per- 
fect and  always  acted  with  justice  in  their  relations  with 
each  other.  Inasmuch,  however,  as  men  are  not  perfect, 

'See  Kropotkine:  "Fields,  Factories  and  Workshops."  Ely: 
"  French  and  German  Socialism." 


172      THE  GOVERNMENT  OF  MODERN  STATES 

they  hold  that  some  exterior  control  is  essential-     They  thus 

justify  government  as  a  necessary  evil.     In  doing  so  they 

logically  hold  that  this  evil  should  be  reduced  to  the  lowest 

j  possible  term.     They  hold  thus  to  the  principle  that  that 

j  government  is  the  best  that  governs  the  least. 

Attempted  Distinction  Between  the  Essential  and 
Non-Essential  Functions  of  Government. —  In  applying 
this  philosophy  individualists  have  sought  to  draw  a  dis- 
tinction between  what  they  term  the  essential  and  the  non- 
essential  functions  of  government.  Admitting  that  some 
government  is  necessary,  but  looking  upon  that  government 
almost  as  an  evil,  they  have  sought  to  determine,  largely  by 
a  priori  reasoning,  those  functions  which  modern  conditions 
render  essential  that  governments  should  perform.  These 
they  term  the  essential  functions  of  government:  all  other 
functions  actually  performed  by  government  are  non-essen- 
tial, and,  in  their  opinion,  should  be  reduced  to  the  lowest 
possible  term,  if  not  wholly  eliminated. 

The  chief  of  these  so-called  essential  functions  are:  the 
enactment  and  enforcement  of  law,  the  administration  of 
justice,  the  maintenance  of  order,  the  protection  of  life  and 
property  and  the  safeguarding  of  the  community  from  for- 
eign aggression.  The  essential  functions  of  government,  in 
a  word,  are  those  of  the  law  giver  and  administrator,  the 
policeman  and  the  soldier.  These  functions  they  hold  all 
governments  should  perform.  All  other  functions  they 
hold  to  be  not  only  non-essential,  but  ones  which  the  govern- 
ment should  not  attempt  to  perform. 

Rise  of  the  School  of  Individualism. —  It  is  difficult  for 
us  at  the  present  time  to  appreciate  the  strength  of  the  hold 
that  this  school  long  had  upon  political  thinking  and  action 
in  both  England  and  America.  It  dominated  political 
thought  during  the  latter  part  of  the  eighteenth  and  the  first 


THE  FUNCTIONS  OF  GOVERNMENT         173 

part  of  the  nineteenth  centuries,  and  exerted  a  profound  in- 
fluence upon  governmental  action.  It  counted  Herbert 
Spencer  among  its  most  distinguished  adherents.  In  his 
"  Coming  Slavery,"  "  Social  Diseases  and  Worse  Reme- 
dies," and  other  writings,  Spencer  vigorously  combated  the 
idea  that  the  government  should  interfere  in  any  way  for 
the  promotion  of  the  general  welfare  of  the  people.  To  him 
and  his  followers  all  legislative  and  governmental  action 
having  for  its  purpose  the  determination  of  labor  condi- 
tions in  factories  and  mines,  with  a  view  to  the  prevention  of 
the  monstrous  abuses  that  were  crushing  out  the  lives  of 
little  children  and  reducing  labor  in  general  to  the  condition 
of  mere  brutes,  were  fundamentally  wrong  in  principle.  To 
them  these  laws  represented  an  unjustifiable  interference 
with  individual  liberty.  The  same  was  true  of  laws  having 
for  their  purpose  the  protection  of  the  public  health  and 
indeed  all  efforts  to  improve  living  conditions  through  gov- 
ernmental action. 

This  attitude  towards  government  was  but  one  phase  of 
the  general  emphasis  that  was  laid  at  that  time  upon  the 
idea  of  natural  law,  the  idea  that  human  conduct  was  sub- 
ject to  a  so-called  natural  law,  and  that,  as  far  as  possible, 
human  conduct  should  be  left  to  the  uncontrolled  working 
of  this  law.  In  the  biological  field  it  found  its  expression 
in  the  principles  of  evolution,  that  progress  is  achieved 
through  the  slow  workings  of  natural  law  of  selection, 
through  the  life  and  death  struggle  of  individuals,  the  selec- 
tion of  the  fit  and  the  elimination  of  the  unfit  through  this 
process.  In  the  economic  field  it  furnished  the  basis  for 
the  great  school  of  "  laissez  faire,"  or  the  Manchester 
school,  as  it  was  known  in  Great  Britain,  that  held  to  the 
opinion  that  industrial  conditions,  the  ownership  of  prop- 
erty and  economic  conditions  generally,  should  be  deter- 


174      THE  GOVERNMENT  OF  MODERN  STATES 

mined  by  the  free  play  of  economic  forces;  that  competition, 
the  working  of  the  natural  law  of  supply  and  demand  should 
be  the  factors  regulating  economic  life;  that  it  was  a  mis- 
take for  the  government  to  interfere  in  any  way  with  the 
free  working  of  these  natural  laws.  It  was  this  philosophy 
that  furnished  the  strongest  argument  for  the  establishment 
of  free  trade,  the  destruction  of  trade  monopolies,  and  other 
restrictions  hampering  the  free  development  of  commerce 
and  industry. 

The  Collectivistic  School. —  Sharply  opposed  to  this 
•  school  of  extreme  individualists  is  the  school  to  which,  for 
want  of  a  better  name,  we  have  given  the  designation  of 
collectivistic.  This  is  the  school  which  may  be  said  to  be 
in  the  ascendancy  at  the  present  time.  Just  at  the  time 
when,  in  the  middle  of  the  nineteenth  century,  the  individ- 
ualists had  seemed  to  have  won  a  victory  all  along  the  line, 
evidence  began  to  accumulate  in  overwhelming  volume  that 
the  results  following  from  the  attempt  to  put  its  principles 
into  practice  were  far  from  satisfactory.  The  placing  of 
reliance  upon  self-interest  as  the  mainspring  of  human  con- 
duct, the  removal  of  restraints  upon  industrial  activities, 
and  the  leaving  of  economic  and  social  conditions  to  be 
determined  by  the  free  play  of  competition,  the  laws  of  sup- 
ply and  demand,  and  other  so-called  natural  economic  laws, 
utterly  failed  to  bring  about  a  condition  increasing  individ- 
ual welfare.  The  strong  used  their  power  to  advance  their 
own  interests  and  to  oppress  the  weak  in  a  ruthless  manner. 
Wealth  and  power  tended  to  concentrate  in  a  few  hands  and 
the  mass  of  the  people  to  be  reduced  to  a  condition  of  eco- 
nomic servitude,  if  not  to  actual  peonage.  Furthermore,  it 
became  evident  that,  with  the  increasing  concentration  of 
population  in  large  cities,  the  rise  of  production  upon  a  large 
scale,  the  growing  interdependence  of  industries,  resulting 


THE  FUNCTIONS  OF  GOVERNMENT         175 

from  the  specialization  in  industry,  etc.,  there  were  many 
things  which  concerned  the  people  as  a  whole,  and  which, 
if  they  were  not  done  by  the  people  as  a  whole  would  not  be 
done  at  all,  or  would  be  done  very  imperfectly.  Regardless 
of  what  might  be  deemed  to  be  wrong  in  theory,  govern- 
ments found  themselves  compelled  to  enter  field  after  field 
lying  wholly  outside  of  the  province  of  the  so-called  essen- 
tial functions  of  government.  It  had  to  take  steps  for  the 
protection  of  the  public  health.  It  had  to  regulate  the  sup- 
ply of  such  public  utilities  as  water,  gas,  electric  light,  trans- 
portation facilities.  Public  conscience  demanded  that  re- 
strictions be  placed  upon  the  right  of  employers  to  work 
women  and  children  in  mines  and  factories. 

From  an  attitude  of  mind  that  looked  upon  government 
as  an  evil,  public  opinion  more  and  more  shifted  to  the  posi- 
tion where  the^  government  was  looked  to  as  an  agency 
having  as  one  of  its  essential  functions  the  use  of  its  powers 
in  an  affirmative  way  for  the  promotion  of  human  welfare. . 

Coincident  with,  and  partly  as  the  result  of,  this  change 
came  the  almost  complete  decay  of  the  old  school  of  natural  • 
law,  and  individual  rights.  Emphasis  began  to  be  placed 
more  and  more  upon  social  rights  and  obligations.  Govern- 
ment from  being  an  agent  for  the  protection  of  individual 
rights  now  began  to  be  looked  upon  as  an  organ  representing 
all  the  people  as  such  and  having  as  its  prime  function  the 
promotion  of  the  general,  as  opposed  to  the  individual,  inter- 
ests of  the  community.  It  is  impossible  to  exaggerate  the 
importance  of  the  revolution  in  thought  that  thus  took  place 
in  respect  to  the  true  functions  of  government.  The  old 
school  of  natural  law,  personal  rights  and  individualism  dis- 
appeared almost  completely,  and  in  its  place  arose  the  mod- 
ern school  of  collectivism  now  firmly  in  its  saddle.  This 
school  recognizes  no  a  priori  limitations  upon  the  functions 


1 76      THE  GOVERNMENT  OF  MODERN  STATES 

,,of  the  government  other  than  possibly  the  general  belief 
thattfthe  government  should  not  intervene  until  it  is  clear 
that  individual  initiative  will  not  be  able  to  meet  the  require- 
ments of  the  situation.//  It  differs  radically  from  the  indi- 
vidualistic school  in  the  emphasis  that  it  places  upon  social 
obligations,  as  opposed  to  individual  self-interest,  and  in  the 
fact  that  it  assigns  a  positive  role  to  government  to  promote 
social  welfare  instead  of  the  negative  role  of  doing  only 
that  which  it  is  compelled  to  do  in  order  that  individual 
initiative  may  have  full  play.1 

The  Socialistic  School. —  We  have  seen  that  in  the  an- 
archistic school  there  is  a  body  of  opinion  that  places  such 
emphasis  upon  the  matter  of  individual  liberty  and  initiative 
that  it  denies  any  right  on  the  part  of  a  community  to 
organize  politically  for  the  purpose  of  imposing  its  collec- 
tive will  upon  the  individuals  composing  it.  In  like  man- 
ner there  is  a  large  school  which  places  such  emphasis  upon 
social  obligations  and  the  efficacy  of  collective  action  that  it 
believes  that  the  conduct  of  industrial  affairs  at  least  should 
be  almost  wholly  turned  over  to  the  government.  In  its 
opinion  the  fundamental  causes  of  social  evils  are  to  be 
found  in  the  unrestricted  play  of  individual  self-interest, 
the  competition  of  individual  with  individual,  each  seeking 
his  own  welfare.  Especially  does  it  hold  that  the  institu- 
tion of  private  ownership  of  land  and  other  instruments  of 
production  is  basically  wrong.  The  remedy  for  this  condi- 
tion of  affairs  it  finds  in  giving  to  the  government  full  direc- 
tion and  control  over  the  economic  life  of  the  people.  It  is 
not  our  intention  here  to  enter  upon  an  examination  of 
the  principles  of  socialism.  We  are  here  concerned  with 
this  school  merely  as  representing  an  attitude  that  can  be 

1  For  a  brilliant  survey  of  this  evolution  from  individualism  to  col- 
lectivism see  A.  V.  Dicey:  "Law  and  Public  Opinion  in  England  in 
the  Ninteenth  Century." 


THE  FUNCTIONS  OF  GOVERNMENT         177 


and  is  assumed  towards  the  functions  of  government.  This 
attitude  is,  it  is  evident,  the  opposite  of  that  of  the  individ- 
ualistic school. 

The  Communistic  School. —  Radical  as  is  the  philosophy 
of  the  socialistic  school,  it  does  not  represent  the  greatest 
extreme  to  which  the  principles  of  collectivism  can  be  car- 
ried. The  socialists  look  upon  government  as  the  means 
through  which  the  industrial  activities  of  the  community 
shall  be  exercised  or  controlled.  Their  interest  is  centered 
in  the  problem  of  so  organizing  and  conducting  the  indus- 
trial life  of  the  people  that  greater  equality  and  justice  will 
obtain  in  the  ownership  of  property  and  the  production  and 
distribution  of  wealth.  In  the  enjoyment  of  this  property 
and  the  wealth  intended  for  consumption,  they  recognize 
that  individual  desires  should  in  large  part  control.  There 
is  another  school,  however,  which  denies  even  this  minimum 
of  individual  choice.  This  school,  known  as  the  communis- 
tic school,  holds  that  it  is  the  function  of  government,  not 
only  to  own  or  control  the  means  by  which  wealth  is  pro- 
duced and  distributed,  but  in  large  part  its  subsequent  util- 
ization. This  school  aims  to  organize  society  in  such  a  way 
that  all  individuals  will,  as  far  as  -possible,  lead  a  common ' 
life.  It  is  thus  the  very  reverse  of  the  anarchistic  school. 

This  school,  it  is  hardly  necessary  to  say,  now  exerts  but 
little  influence.  In  the  past,  however,  it  received  no  little 
support  and  a  number  of  serious  efforts  were  made  to  put 
its  principles  into  practice  on  a  small  scale.  The  most  im- 
portant of  these  efforts  was  the  famous  Brook-Farm  experi- 
ment in  the  United  States,  in  which  so  many  prominent 
members  of  the  New  England  literary  circle  were  interested. 
At  the  present  time  the  famous  establishment  of  Godin  at 
Guise,  France,  represents  an  effort  in  this  direction  which 
has  met  with  a  certain  degree  of  success. 


PART  V 

THE  ORGANIZATION  OF 
GOVERNMENTS 


CHAPTER  X 

THE   DISTRIBUTION    OF   GOVERNMENTAL   POWERS 
TERRITORIALLY 

Having  determined  the  scope  of  the  authority  of  govern- 
ment by  fixing  the  limitations  within  which  it  must  act,  the 
next  question  that  is  presented  to  our  supposititious  consti- 
tutional convention  is  that  of  determining  the  character  of 
the  organization  that  shall  be  created  for  the  exercise  of 
such  powers  as  are  granted. 

The  Unity  of  Government. —  In  our  consideration  of 
the  nature  of  the  State  we  have  shown  how  unity  constitutes 
one  of  its  most  essential  attributes.  It  is  of  the  utmost  im- 
portance that  we  should  appreciate  that  a  like  quality  at- 
taches to  its  government.  It  is  unfortunate  that  the  term 
"  government "  is  employed  to  designate  the  several  sub- 
divisions of  the  machinery  made  use  of  by  a  State  for  the 
conduct  of  its  affairs;  as,  for  instance,  the  government  of  a 
province,  the  government  of  a  city,  etc.,  as  if  there  could 
exist  within  a  State  a  number  of  distinct  governments  at 
the  same  time.  In  a  very  real  sense  a  State  can  have  but  one 
government.  What  seem  to  be  separate  governments  for 
the  administration  of  public  affairs  for  the  country  as  a 
whole  and  such  subdivisions  as  constituent  states,  provinces, 
cities  and  the  like  are  in  reality  but  parts  of  one  govern- 
mental system.  They  all  constitute,  or  should  constitute, 
but  parts  of  one  highly  integrated  scheme  of  governmental 
organization. 

181 


i82      THE  GOVERNMENT  OF  MODERN  STATES 

Not  until  we  grasp  this  point  can  the  first  advance  be 
made  in  studying  the  governmental  system  of  any  country. 
In  all  cases  we  must  start  from  the  position  that  a  single  gov- 
ernmental system  is  to  be  brought  into  existence.  The  prob- 
lem is  that  of  the  distribution  of  governmental  powers 
among  parts  of  this  system  in  such  a  way  that  together  they 
will  constitute  one  harmonious  scheme  for  the  administra- 
tion of  public  affairs.  How  this  problem  is  met  determines 
vitally  the  character  of  the  governmental  system  resulting. 

We  have  taken  pains  to  emphasize  this  point  since  we,  in 
the  United  States,  are  so  apt  to  think  that  the  essential  point 
of  difference  between  our  government  and  that  of  countries 
having  what  is  termed  a  centralized  government  is  that,  in 
the  latter,  the  conduct  of  public  affairs  is  entrusted  to  a 
single  government,  while,  with  us,  use  is  made  of  a  number 
of  governments.  This  is  so  only  in  a  very  special  sense. 
As  we  shall  see,  States  having  so-called  centralized  govern- 
ments have  political  subdivisions  corresponding  to  our  states 
and  these  divisions  have  their  special  governing  authorities. 
The  real  distinction  thus  is  not  between  the  having  of  one 
government  or  a  number,  but  in  respect  to  the  principles  in 
accordance  with  which  a  distribution  of  the  totality  of  gov- 
ernmental powers  is  made  between  governmental  organs. 
The  United  States  no  less  than  any  other  State  has  a  single 
government. 

The  Necessity  for  the  Distribution  of  Governmental 
Powers. —  Though  a  State  can  have  but  one  government 
it  is  imperative  that  the  sum  total  of  its  powers  shall  be 
distributed  in  some  way  among  distinct  organs  if  they  are 
to  be  effectively  exercised.  Such  is  the  extent  of  the  terri- 
tory of  modern  States,  and  such  the  amount  and  variety  of 
work  to  be  done,  that  it  is  impossible  for  any  single  author- 
ity directly  to  undertake  the  performance  of  all  the  duties 


DISTRIBUTION  TERRITORIALLY  183 

that  under  any  system  fall  within  the  province  of  the  gov- 
ernment. In  all  governmental  systems  we  thus  find  a  multi- 
plicity of  organs  and  authorities,  each  with  its  more  or  less 
distinct  field  of  activities  and  duties,  but  each  maintaining 
important  relations  with  the  other  organs  and  authorities. 
Together  they  constitute  the  government  of  the  State  on 
behalf  of  which  this  authority  is  exercised. 

Twofold  Method  of  Distributing  Governmental  Pow- 
ers—  Territorial  and  Functional. —  Two  methods  of  dis- 
tributing governmental  powers  may  be  employed  —  the  ter- 
ritorial and  the  functional.  The  territorial  method  is  that 
where  the  territory  of  the  State  is  divided  into  a  number  of 
distinct  districts  each  of  which  is  charged  with  the  perform- 
ance of  certain  governmental  duties  within  its  boundaries, 
and  each  of  which  is  provided  with  a  governmental  organ- 
ization through  which  such  performance  may  be  had.  The 
functional  method  is  that  where  the  distribution  to  particular 
organs  or  authorities  is  made  in  accordance  with  the  char- 
acter of  the  authority  to  be  exercised. 

These  two  methods  are  not  alternative  methods.  Both 
are  employed  in  the  organization  of  all  modern  governments. 
In  their  employment  a  wide  divergence  of  policy  is,  however, 
open.  Whether  the  distribution  is  made  in  accordance  with 
one  policy  or  another  goes  far  towards  determining  the  fun- 
damental character  of  the  governmental  system  resulting. 
According  as  one  principle  or  another  is  followed  in  distrib- 
uting powers  territorially  there  is  brought  into  existence  a 
type  of  government  known  as  a  "  Unitary  Government  "  or 
one  to  which  the  designation  of  "  Multiple  Government " 
may  be  given,  though  the  term  more  usually  employed  is  that 
of  "  Federal  Government."  And,  according  as  one  or  an- 
other principle  is  adopted  in  respect  to  the  distribution  of 
powers  functionally,  types  of  governments  are  created 


1 84      THE  GOVERNMENT  OF  MODERN  STATES 

known  as  Governments  of  Union  of  Powers  and  Govern- 
ments of  Separation  of  Powers.  The  importance  of  these 
two  questions  is  therefore  such  that  we  are  warranted  in 
examining  them  with  exceptional  care. 

Distinction  Between  Administrative  Districts  and  Po- 
litical Subdivisions. —  The  necessity  for  the  division  of  the 
territory  of  a  State  into  governmental  areas  arises  from 
two  facts:  (i)  the  great  extent  of  territory  over  which 
modern  States  exercise  jurisdiction;  and  (2)  the  fact  that 
many  functions  of  government  have  to  do  with  operations 
affecting  the  interests  of  particular  localities  rather  than 
those  of  the  country  as  a  whole. 

Subdivisions  for  the  first  reason  are  made  purely  for  the 
purpose  of  facilitating  the  administration  of  public  affairs. 
Of  this  character  are  the  divisions  into  which  countries  are 
divided  for  the  conduct  of  military  affairs,  the  collection  of 
revenue,  the  operation  of  a  national  postal  system,  or  the 
performance  of  any  work  constituting  one  of  the  functions 
of  the  general  or  central  government  of  the  State.  In  all 
these  cases  the  powers  exercised  are  powers  of  the  central 
government.  The  officers  exercising  authority  in  the  dis- 
tricts are,  not  officers  of  the  district,  but  of  the  central  gov- 
ernment. The  districts  themselves  have  no  governmental 
organization,  no  governmental  powers,  no  political  auton- 
omy. Districts  of  this  character  thus  are  not,  properly 
speaking,  political  subdivisions;  and,  in  them,  we  have  no 
territorial  distribution  of  governmental  powers  in  the  sense 
in  which  we  are  now  employing  that  term.  They  are,  as 
stated,  merely  administrative  areas. 

If  we  turn  now  to  subdivisions  of  a  country  that  are  made 
in  order  to  take  account  of  the  fact  that  certain  functions  of 
government  affect  the  interests  of  localities  rather  than 
those  of  the  country  as  a  whole,  we  have  to  do  with  quite  a 


DISTRIBUTION  TERRITORIALLY  185 


different  condition  of  affairs,  and  one  that  raises  questions 
exceedingly  difficult  of  satisfactory  solution.  The  problem 
here  is  one  of  splitting  up  the  sum  total  of  governmental 
powers  and  distributing  them  among  a  number  of  distinct 
governmental  organizations,  each  exercising  an  authority 
within  a  fixed  territory  and  in  respect  to  certain  determined 
matters. 

The  reason  for  such  a  splitting  up  and  distribution  of  gov- 
ernmental powers  has  already  been  indicated.  It  lies  in  the 
fact  that  many  functions  which  it  is  desirable  to  assign  to 
government  affect  exclusively,  or  primarily,  particular  com- 
munities rather  than  the  country  as  a  whole.  It  would  of 
course  be  possible  to  ignore  this  distinction  and  entrust  the 
performance  of  all  these  functions  to  a  single  central  author- 
ity. Two  powerful  reasons  exist,  however,  why  this  should 
not  be  done.  The  first  is  that  it  would  be  extremely  difficult, 
if  not  impossible,  to  secure  an  efficient  administration  of 
governmental  affairs  in  this  way.  The  burden  of  work  and 
responsibility  that  would"  thus  be  thrown  upon  the  central 
organization  would  be  greater  than  it  could  effectively  bear. 
The  attempt  on  the  part  of  a  central  government  to  deter- 
mine such  conditions  and  needs  and  to  take  the  action  re- 
quired in  each  case  would  result  in  intolerable  expense  and 
delay. 

The  second  is,  if  possible,  of  still  greater  importance.  It 
consists  in  the  fact  that,  as  far  as  possible,  each  community 
should  have  the  management  of  those  governmental  affairs 
which  concern  itself  alone  or  do  not  affect  the  interests  of 
othr  communities  in  such  a  way  as  to  warrant  their  inter- 
vention. This  is  so  for  two  reasons :  first,  because  it  must 
be  deemed  as  only  just  that  each  community  should  manage 
its  own  affairs ;  and,  second,  because  the  presumption  is  that 
affairs  will  be  better  administered  by  the  community  directly 


1 86      THE  GOVERNMENT  OF  MODERN  STATES 

interested  in  the  results  obtained  than  by  one  having  no  such 
interest. 

It  is  for  these  reasons  that,  as  we  have  stated,  all  States 
of  any  size  have  divided  their  territories  into  political  sub- 
divisions, provided  each  with  a  governmental  organization, 
and  made  a  distribution  of  governmental  functions  among 
them  and  the  central  government. 

System  of  Political  Divisions  of  Modern  Governments. 
—  Not  only  have  all  modern  States  of  any  size  adopted  the 
policy  of  dividing  their  territories  into  political  subdivisions 
for  governmental  purposes,  but,  in  doing  so,  they  have 
brought  into  existence  systems  of  divisions  which,  from  the 
territorial  standpoint,  are  substantially  similar.  First  in 
order  we  have  the  entire  country  treated  as  one  political 
area.  The  organization  managing  its  political  affairs  is 
known  as  the  Central  or  National  Government.  Next  we 
find  this  area  subdivided  into  a  relatively  small  number  of 
grand  divisions  variously  designated  as  kingdoms,  constitu- 
ent states,  provinces,  departments,  cantons,  etc.,  each  with 
its  special  government.  Each  of  these  grand  divisions  is,  in 
turn,  further  subdivided  into  smaller  areas  known  as  dis- 
tricts, counties,  townships,  communes,  etc.,  each  also  having 
its  political  organization.  Theoretically,  this  process  of 
successive  subdivision  of  the  territory  of  a  State  for  govern- 
mental purposes  can  be  carried  out  indefinitely.  Actually,  it 
rarely  proceeds  beyond  this  point.  If  there  are  any  other 
subdivisions  they  are  usually  of  a  purely  administrative  char- 
acter, and  as  such  must,  as  already  pointed  out,  be  carefully 
distinguished  from  the  political  subdivisions  of  a  country 
which  we  are  now  considering. 

All  countries,  moreover,  recognize  that  the  problems  of 
government  of  urban  and  rural  areas  are  different.  All  con- 
sequently provide  for  the  segregation  of  distinctly  urban 


DISTRIBUTION  TERRITORIALLY  187 


areas,  and  the  grant  to  them  of  special  political  organizations 
for  the  performance  of  the  governmental  duties  specially 
affecting  them.  All  of  these  areas  may  not  be  treated  alike. 
Each  may  be  given  its  special  political  organization  and 
powers;  or  the  several  areas  may  be  divided  into  classes 
according  to  their  population  or  some  other  criterion.  A 
usual  distinction  is  that  between  the  more  populous  areas 
which  are  designated  cities  and  the  smaller  or  less  densely 
populated  centers  which  are  known  as  villages.  It  is,  how- 
ever, by  no  means  unusual  for  areas  of  the  first  class  to  be 
further  divided  according  to  their  size  into  cities  of  the  first 
class,  cities  of  the  second  class,  and  so  on. 

Finally  we  have  the  division  of  the  entire  area  of  the 
State,  or  the  segregation  of  special  areas,  for  the  perform- 
ance of  certain  special  functions.  Of  this  character  are  the 
areas  which  are  set  up  for  the  administration  of  such  mat- 
ters as  education,  the  construction  and  maintenance  of 
roads,  the  care  of  the  public  health,  the  relief  of  the  poor, 
etc.  In  the  United  States  this  policy  of  dividing  the  coun- 
try into  special  areas  for  the  performance  of  particular  func- 
tions of  government  has  been  carried  to  a  very  great  extent. 
A  recent  note  in  the  American  Political  Science  Review  thus 
calls  attention  to  the  fact  that  during  the  year  1915  no  less 
than  thirty-six  general  laws  were  passed  by  the  states  pro- 
viding for  the  creation  of  districts  of  this  character,  while 
provision  was  made  for  fifty  such  districts  by  special  act. 
The  variety  of  the  purposes  for  which  these  districts  were 
created  is  shown  by  the  following  heads  under  which  these 
districts  were  listed  and  described:  Irrigation  districts, 
levee  and  drainage  districts,  flood  and  river  control  districts, 
bulkhead  and  seawall  districts,  sanitary  and  storm  sewer 
districts,  school  districts,  road  districts,  horticultural  and 
quarantine  districts,  tuberculosis  districts,  fire  and  water 


i88      THE  GOVERNMENT  OF  MODERN  STATES 

districts,  lighting  districts,  bridge  districts,  stone  and  gravel 
districts,  electrical  districts,  and  land  improvement  districts.1 

It  will  be  seen  from  the  foregoing  that  we  may  distinguish 
five  distinct  categories  of  political  divisions :  ( i )  the  entire 
area  over  which  the  State  exercises  jurisdiction,  (2)  major 
divisions,  (3)  minor  divisions,  (4)  municipalities,  and  (5) 
special  activities  divisions. 

Though  five  separate  kinds  of  political  divisions  may  thus 
be  recognized,  it  is  desirable  for  many  purposes  to  consider 
the  last  three  as  constituting  a  single  class.  Though  dis- 
tinct in  character  these  three  have  two  things  in  common : 
They  are  established  almost  invariably  solely  for  the  purpose 
of  providing  an  organization  through  which  matters  of 
purely  local  concern  may  be  administered;  and  only  in  ex- 
ceptional cases  are  any  general  powers  of  government  con- 
ferred upon  them.  Treating  these  three  for  present  pur- 
poses as  one  class,  we  therefore  have  three  main  classes  of 
political  divisions,  the  governments  of  which  are  usually 
designated  as  Central  Government,  Provincial  or  State  Gov- 
ernments and  Local  Governments. 

Analysis  of  the  Problem  of  the  Distribution  of  Gov- 
ernmental Powers  Territorially. —  The  government  of  a 
State,  we  have  pointed  out,  consists  of  the  totality  of  the 
organs  or  authorities  made  use  of  by  the  State  for  the  exer- 
cise of  those  powers  which  it  has  decided  shall  fall  within 
the  province  or  jurisdiction  of  government.  In  practice  all 
States  of  any  size  have,  as  we  have  seen,  made  provision 
for  three  classes  of  organizations  each  exercising  authority 
over  a  particular  area.  Concretely,  therefore,  the  problem 
of  the  distribution  of  governmental  powers  territorially  is 
that  of  determining  the  manner  in  which  the  sum  total  of 

1  Legislative  Notes  and  Reviews:  Amer.  Pol.  Sci.  Rev.,  Nov.,  1915, 
PP.  751-759. 


DISTRIBUTION  TERRITORIALLY  189 

governmental  powers  shall  be  distributed  among  these  three 
classes  of  organizations. 

If  we  analyze  this  problem  it  will  be  found  that  in  it  are 
,  involved  four  distinct  questions:  (i)  the  determination  of 
the  authority  by  which  the  distribution  shall  be  made,  (2) 
the  division  of  the  country  geographically  into  political  divi- 
L  sions,  (3)  the  determination  of  the  powers  of  government 
.  that  shall  be  conferred  upon  each  class  of  divisions,  and  (4) 
the  determination  of  the  character  of  governmental  organ- 
ization that  shall  be  provided  for  each  class  for  the  exercise 
of  these  powers. 

Of  these  four  questions  the  first  is,  from  the  standpoint 
of  political  science,  much  the  most  important.  Decision  in 
respect  to  k  determines  the  whole  character  of  the  govern- 
mental system  resulting.  To  it  we  shall,  therefore,  devote 
our  chief  attention. 

Determination  of  the  Authority  by  Which  the  Terri- 
torial Distribution  of  Powers  Shall  Be  Made. —  Through- 
out our  consideration  of  the  organization  of  a  State  and  its 
government  we  have  sought  to  make  clear  that  the  controll- 
ing factor  determining  the  type  or  character  of  government 
resulting  is  in  all  cases  the  location  of  authority.  In  no  case 
do  we  find  this  more  true  than  in  respect  to  the  question  now 
finder  consideration.  Upon  the  possessor  of  legal  sover- 
eignty falls  the  responsibility  for  determining  the  character 
of  government  that  shall  be  established  for  the  exercise  of 
the  powers  which  it  has  decided  shall  fall  within  the  province 
of  government.  This  responsibility  it  can  meet  in  two 
ways:  (i)  by  itself  taking  action;  or  (2)  by  delegating  to 
its  agent,  the  government,  to  act  for  it.  If  it  acts  in  the 
first  way  we  have  an  example  of  the  exercise  of  constituent 
powers,  the  decision  reached  thus  being  made  an  integral 
part  of  the  constitution  by  which  a  government  is  established 


190      THE  GOVERNMENT  OF  MODERN  STATES 

and  its  character  and  powers  defined.  If  action  is  had  in  the 
second  way  we  have  an  example  of  the  exercise  of  legisla- 
tive powers,  the  decision  being  embodied  in  a  document 
known  as  a  statute  or  act. 

This  is  the  issue  which  squarely  confronts  a  State  in 
determining  the  character  of  the  government  that  shall  be 
established  by  it.  Shall  it  seek  to  determine  by  constitu- 
tional enactment  how  the  territory  of  the  State  shall  be 
divided  into  political  divisions  and  the  manner  in  which 
governmental  powers  shall  be  distributed  among  these  divi- 
sions; or  shall  it  content  itself  with  creating  a  single  organ- 
ization in  which  shall  be  vested  all  governmental  powers, 
leaving  to  that  organization  the  responsibility  for  determin- 
ing subsequently  the  manner  in  which  the  powers  conferred 
upon  it  shall  be  distributed  territorially? 

Distinction  Between  a  Unitary  and  a  Multiple  Govern- 
ment.—  This  is  a  momentous  question.  Next  to  the  ques- 
tion as  to  whether  sovereignty  shall  be  deemed  to  reside  in 
the  ruler  or  in  the  people,  its  answer  more  than  anything 
else  determines  the  whole  character  of  the  governmental 
system  resulting.  According  as  one  principle  or  the  other 
is  adopted  there  is  brought  into  existence  a  form  of  govern- 
ment known  as  a  Federal  Government,  but  which  can  be 
more  expressively  designated  as  a  Multiple  Government,  or 
one  which  in  political  science  is  known  as  a  Unitary  Gov- 
ernment.1 

1  The  term  "  Multiple  Government "  though  not  generally  recognized 
in  political  terminology  is  here  employed  in  preference  to  that  of 
"  Federal  Government "  since  the  latter  term  is  neither  sufficiently 
comprehensive  nor  does  it  bring  out  clearly  the  essential  distinction^ 
between  the  two  types  of  government.  The  term  "  Federal  Govern- 
ment," properly  employed,  covers  only  the  case  where  a  dual  division 
of  governmental  authority  has  been  made  between  a  central  govern- 
ment and  that  of  constituent  states.  It  is  quite  possible  for  govern- 


DISTRIBUTION  TERRITORIALLY  191 

All  modern  governments  fall  within  one  or  the  other  of 
these  two  categories.  To  the  first  belong  the  governments 
of  the  United  States,  Germany  and  Switzerland;  to  the 
second  those  of  Great  Britain,  France,  Italy,  Belgium,  Rus- 
sia, Japan  and  indeed  almost  all  other  countries.  We  have 
here  a  classification  of  governments  that  is  thus  of  the 
utmost  significance.  Manifestly,  therefore,  it  is  of  prime 
importance  that  we  should  seek  to  determine  the  motives 
which  have  led  to  the  adoption  of  one  or  the  other  type, 
the  relative  advantages  of  the  two  types  and  the  character 
c  f  the  results  that  each  type  has  given  in  practice.  To  us  in 
the  United  States  it  raises  the  great  question  as  to  whether 
the  multiple  system  adopted  by  us  is  the  one  best  suited  to 
our  needs.  The  statement  that  this  is  the  only  form  of 
government  under  which  a  union  of  the  original  thirteen 
states  could  be  effected  undoubtedly  describes  an  historical 
fact.  From  this  standpoint  the  action  taken  was  an  act  of 
wisdom  and  was  fully  justifiable.  This,  however,  does  not 
absolve  us  from  the  obligation  of  seeking  to  determine  by 
careful  study  the  intrinsic  merits  and  demerits  of  the  two 
systems.  Action  that  was  the  best  feasible  under  the  cir- 
cumstances may  not  be  the  best  that  could  have  been  taken 
had  complete  freedom  of  choice  existed.  Nor  does  it  neces- 
sarily follow  that  the  decision  thus  made  is  one  which 
equally  well  meets  conditions  as  they  exist  at  the  present 
day.  Principle  and  expediency  are  two  quite  different 
things. 

mental  authority  to  be  distributed  among  three  or  more  separate  po- 
litical bodies.  In  fact  the  demand  now  being  made  that  the  status 
and  powers  of  municipalities  be  determined  by  constitutional  provisions 
definitely  raises  the  question  of  making  such  a  triple  division.  There 
is  indeed  no  logical  reason  why  this  demand  should  stop  here  and  not 
be  extended  to  the  determination  of  the  spheres  and  activities  of  other 
political  subdivisions  by  constitutional  provision. 


192      THE  GOVERNMENT  OF  MODERN  STATES 

From  what  has  been  said  it  is  evident  that  the  distinction 
between  a  Unitary  and  Multiple  Government  does  not  lie  in 
the  division  or  non-division  of  the  territory  of  a  State  into 
distinct  political  areas,  since  such  a  division  is  found  in  all 
States  of  any  size;  nor  even  in  the  nature  of  the  powers  or 
form  of  government  of  such  subdivisions,  but  wholly  in 
the  difference  as  regards  the  authority  by  which  such  areas 
are  established  and  their  powers  and  governmental  organ- 
ization determined. 

In  a  Multiple  Government  this  distribution  of  powers  ter- 
ritorially is  made  by  the  body  exercising  legal  sovereignty 
as  an  essential  part  of  the  task  of  framing  a  constitution  by 
which  the  powers  of  government  and  the  manner  of  their 
exercise  are  determined.  In  a  Unitary  Government  no 
such  attempt  is  made.  All  the  powers  of  government  are 
conferred  in  the  first  instance  upon  a  single  central  govern- 
ment and  that  government  is  left  complete  freedom  to  effect 
such  a  distribution  of  these  powers  territorially  as  in  its 
opinion  is  wise.  A  Unitary  Government  thus  represents 
the  decision  on  the  part  of  the  legal  sovereign  to  make  use 
of  a  single  integrated  system  of  organization  for  the  exer- 
cise of  all  the  powers  which  it  has  decided  shall  fall  within 
the  province  of  government;  a  Multiple  Government,  the 
decision  to  make  use  of  two  or  more  distinct  organizations 
for  this  purpose. 

Theoretically,  in  the  latter  case,  a  people  could,  in  framing 
a  constitution,  determine  the  manner  in  which  the  country 
shall  be  divided  into  both  major  and  minor  subdivisions  and 
the  powers  and  form  of  government  of  each.  Actually, 
however,  most,  if  not  all,  States  which  have  adopted  the 
multiple  form  of  government  have  not  gone  this  far.  They 
have  contented  themselves,  in  framing  their  constitutions, 
with  a  division  of  the  field  of  government  between  a  central 


DISTRIBUTION  TERRITORIALLY  193 

government  and  those  of  major  divisions,  leaving  to  the 
latter  the  responsibility  for  making  such  further  subdivisions 
as  may  be  found  necessary.  They  have  thus  adopted  the 
multiple  principle,  in  so  far  as  the  central  government  and 
that  of  the  major  divisions  are  concerned,  and  the  unitary 
principle,  in  respect  to  the  relations  between  the  latter  and 
minor  divisions.  It  is  of  interest,  however,  to  note  that  at 
the  present  time  there  is  a  strong  movement  to  extend  the 
multiple  principle  into  the  field  of  municipal  government. 
The  demand  that  exists  for  the  constitutional  guarantee  of 
what  is  known  as  home  rule  for  cities  is  nothing  more  than 
the  demand  that  the  legal  sovereign  in  the  exercise  of  its 
constitution-framing  powers  shall  provide  for  the  organiza- 
tion of  municipal  governments  and  determine,  in  part  at 
least,  what  shall  be  their  powers  and  form  of  organization. 

It  is  evident  that  this  difference  in  respect  to  the  authority 
by  which  a  territorial  distribution  of  governmental  powers 
is  effected  profoundly  affects  the  status  of  political  subdivi- 
sions. In  a  Multiple  Government  the  two  or  more  govern- 
ing bodies  are  coordinate.  In  each  case  the  line  of  author- 
ity runs  direct  to  the  legal  sovereign.  In  a  Unitary  Govern- 
ment the  political  subdivisions  are  integral  parts  of  the  single 
central  government.  They  are  created,  their  powers  de- 
fined, and  their  form  of  organization  determined,  by  that 
government. 

Comparison  of  the  Relative  Merits  of  Unitary  and 
Multiple  Governments. —  Having  stated  the  essential  dif- 
ferences between  a  Unitary  and  a  Multiple  Government  it 
remains  for  us  to  attempt  their  comparison,  with  a  view  to 
determining-  their  relative  merits  and  demerits.  In  doing 
so  we  shall  put  aside,  for  the  present  at  least,  all  considera- 
tions arising  out  of  the  circumstances  under  which  existing 
governments  have  been  established,  or  the  particular  motives, 


194      THE  GOVERNMENT  OF  MODERN  STATES 

historical  or  otherwise,  which  have  led  nations  to  adopt  one 
type  or  the  other.  We  shall  seek  to  make  the  comparison 
one  solely  of  the  intrinsic  merits  and  demerits  of  the  two 
systems. 

Viewed  from  this  standpoint,  it  is  well  to  state  at  the  very 
.  outset  that  there  can  be  hardly  any  question  but  that  the 
tmitajry  type  represents  by  far  the  most  effective  form  of 
governmental  organization.  It  is  indeed  difficult  to  indi- 
cate a  single  feature  in  respect  to  which  it  is  not  superior 
to  the  multiple  type.  In  the  first  place  the  whole  problem 
of  the  organization  of  a  government  is  enormously  simplified 
when  the  decision  is  made  to  establish  a  Unitary  Govern- 
ment. The  constitution- framing  body  has  but  the  single 
task  of  determining  the  form  of  government  that  shall  be 
established  for  the  general  government  of  the  country.  It 
does  not  have  to  concern  itself  with  the  manner  in  which 
the  territory  shall  be  divided  into  political  divisions  nor  the 
manner  in  which  governmental  powers  shall  be  distributed 
among  such  divisions  in  order  that  they  may  be  most  effi- 
ciently performed.  The  whole  question  of  distributing 
power  territorially  is  treated  as  a  matter  of  internal  organ- 
ization to  be  decided  by  the  government  itself.  When  a 
Multiple  Government  is  established,  on  the  other  hand,  the 
constitution-framing  body  is  forced  to  assume  the  burden, 
not  merely  of  providing  for  two  or  more  governments,  but 
of  determining  the  manner  in  which  the  total  of  govern- 
mental powers  shall  be  distributed  among  them.  This  is  a 
task  of  such  difficulty  that  a  satisfactory  performance  of  it 
at  one  time  is  almost  impossible.  We  in  the  United  States 
are  only  too  familiar  with  the  troubles  which  the  attempt 
that  was  made  to  mark  off  definite  fields  of  activities  for  the 
national  and  the  state  governments  has  given  rise.  Our 
whole  political  history  has  been  marked  by  bitter  contests 


DISTRIBUTION  TERRITORIALLY  195 

regarding  the  jurisdiction  of  the  two  governments.  Even 
now,  a  century  and  a  quarter  after  the  constitution  was 
adopted,  the  issues  growing  out  of  this  attempt  have  not  been 
all  solved. 

A  second  great  advantage  of  the  Unitary  over  the  Mul- 
tiple Government  lies  in  the  greater  flexibility  that  it  enjoys.  • 
In  a  Multiple  Government  the  jurisdictions  of  the  central 
government  and  that  of  the  constituent  states  have  been 
rigidly  fixed  by  constitutional  provisions.  The  only  way 
by  which  a  change  can  be  effected  is  therefore  that  of  secur- 
ing an  amendment  to  the  constitution.  Were  social  condi- 
tions static  and  political  problems  always  the  same,  this 
might  not  be  an  important  consideration.  It  is  hardly  nec- 
essary, however,  to  say  that  this  is  not  the  case.  Certainly 
it  is  not  true  of  the  period  covering  the  last  hundred  or 
hundred  and  fifty  years,  during  which  the  governmental 
systems  of  most  modern  States  have  come  into  existence. 
Nor  is  there  any  indication  that  it  will  be  any  more  true  of 
the  immediate  future. 

Now  the  most  significant  feature  of  the  changes  that  have 
taken  place  during  this  period,  and  are  still  in  progress,  in 
so  far  as  they  affect  the  problem  of  government,  is  that 
they  bear  specially  on  this  question  of  the,  territorial  distri- 
bution of  powers.  If  we  go  back  to  the  middle  of  the 
eighteenth  century  we  find  a  situation  of  affairs  where  the 
several  parts  of  a  country  were  in  great  part  self-contained 
communities.  Each  produced  the  great  bulk  of  the  com- 
modities consumed  by  it.  From  the  economic  standpoint 
they  were  almost  non-competing  areas.  Under  these  con- 
ditions it  was  quite  feasible  that  each  should  manage  its 
own  public  affairs  independently  of  the  others.  The  devel- 
opment of  improved  means  of  communication  and  of  pro- 
duction upon  a  large  scale,  to  mention  but  two  of  the  more 


196      THE  GOVERNMENT  OF  MODERN  STATES 

important  changes  that  have  taken  place  since  that  date, 
have  changed  all  this.  The  entire  area  of  States  instead 
of  being  composed  of  districts  more  or  less  independent  in- 
dustrially have  become  single  competing  districts.  What 
were  formerly  matters  of  local  concern  are  now  of  general 
interest,  and  as  such  ones  to  be  regulated  or  determined  by 
a  general  authority.  It  is  indeed  not  too  much  to  say  that 
the  transformation  that  has  taken  place  in  the  industrial  and 
social  life  of  nations  during  the  past  century  or  century 
and  a  half  have  profoundly  changed  the  whole  problem  of 
government. 

As  bearing  on  the  question  now  under  consideration  the 
important  point  to  be  noted  is  that  these  changes  have  not 
taken  place  all  at  once.  Only  step  by  step  have  local  inter- 
ests been  transformed  into  general  interests.  The  situa- 
tion therefore  cannot  be  met  by  effecting  a  change  in  the 
distribution  of  powers  at  infrequent  intervals.  One  of  the 
essential  features  of  a  good  governmental  system  should  be 
that  of  its  ability  promptly  to  modify  its  organization,  and 
the  manner  in  which  its  powers  are  exercised,  as  new  needs 
and  conditions  render  such  change  desirable.  This  feature 
a  Unitary  Government  possesses  and  a  Multiple  Govern- 
ment lacks.  Possessed  of  full  powers,  a  Unitary  Govern- 
ment can  at  all  times  modify  its  scheme  of  internal  organi- 
zation and  distribution  of  powers  as  need  arises.  This  a 
Multiple  Government  cannot  do  except  by  way  of  securing 
an  amendment  to  the  constitution  under  which  it  is  work- 
ing. This,  in  a  State  where  sovereignty  is  deemed  to  reside 
in  the  people,  is  an  operation  which,  under  the  most  favor- 
able circumstances,  involves  a  great  deal  of  trouble  and 
delay.  Experience,  moreover,  has  shown  that  success  in 
such  an  appeal  can  rarely  be  obtained  until  conditions  have 
become  almost  intolerable. 


DISTRIBUTION  TERRITORIALLY  197 

It  is  not  necessary,  however,  to  rest  the  case  for  the  supe- 
•jority  of  the  unitary  system  as  regards  the  element  of  flex- 
bility  upon  these  general  statements.     One  has  only  to 
jxamine   the   history   of   governmental   conditions   in  the 
Jnited  States  to  find  a  striking  illustration  of  the  disad- 
vantages under  which  that  country  has  labored  and  still  is 
aboring  in  this  respect  growing  out  of  its  adoption  of  the 
rmltiple  type  of  government     It  was  the  misfortune  of  the 
nited  States  to  adopt  its  constitution  just  on  the  eve  of  the 
reat  changes  which,  as  we  have  pointed  out,  have  so  pro- 
Dundly  altered  the  practical  problem  of  government.     At 
lat  time  conditions  were  not  such  as  to  demand  that  many 
Tairs   should   be   administered   by    a   national   authority, 
ne  can  very  well  believe  that  the  distribution  of  govern- 
ental  powers  that  was  then  made  between  the  central 
)vernment  and  those  of  the  constituent  states  fairly  cor- 
sponded  to  conditions  then  existing,  though  opinion  even 
that  time  was  by  no  means  unanimous  on  that  point, 
o  one,  however,  can  question  that  conditions  since  then 
ave  radically  changed.     Notwithstanding  this,  it  has  been 
ipossible  to  secure  any  important  modifications  in  the  dis- 
ibution  of  powers  that  was  then  made.     The  result  is  that 
e  are  now  seeking  to  secure  an  administration  of  public 
ffairs  under  a  system  of  distribution  of  powers  that  fails 
many  important  respects  to  correspond  to  the  needs  of 
le  situation.     We  need  only  mention  by  way  of  illustration 
le  matter  of  the  regulation  of  railway  transportation,  the 
isiness  of  insurance,  the  elaboration  of  a  proper  code  for 
he  regulation  of  the  conditions  of  labor,  and  the  securing 
f  social  reforms  of  various  kinds.     Only  by  the  subjection 
f  the  provisions  of  the  constitution  to  the  most  strained 
onstruction,  arid  by  the  adoption  of  such  slow  and  cumber- 
ome  indirect  methods  as  that  of  seeking  to  secure  uniform 


198      THE  GOVERNMENT  OF  MODERN  STATES 

action  by  the  several  states,  is  the  system  made  to  give  evei 
tolerable  results.  The  changing  of  the  provisions  of  th< 
constitution  prescribing  the  procedure  for  amending  th< 
constitution  so  as  to  make  such  amendment  easier  would 
of  course,  improve  conditions  in  this  respect.  Such  action 
however,  could  never  give  to  a  Multiple  Government  th< 
same  flexibility  that  is  enjoyed  by  a  Unitary  Government. 

The  two  foregoing  advantages  of  Unitary  Government; 
have  to  do  with  the  greater  ease  and  promptness  with  whicl 
such  a  form  of  government  can  be  established  and  subse 
quently  modified  in  order  to  meet  changing  conditions.  Il 
now  we  consider  the  relative  merits  of  the  two  systems  f  ron 
the  standpoint  of  their  practical  operation  we  will  find  th< 
advantage  to  lie  no  less  with  the  unitary  system.  The  out- 
standing feature  of  the  unitary  system  of  government  is,  as 
the  name  implies,  unity.  All  the  powers  of  government  an 
concentrated  in  the  hands  of  a  single  set  of  authorities.  Al 
the  organs  of  government  constitute  integral  parts  of  on* 
piece  of  administrative  mechanism.  All  the  force  of  gov- 
ernment can  thus  be  brought  to  bear  directly  upon  the  prob- 
lems of  administration  to  be  solved.  There  can  be  no  con- 
flict of  authority,  no  conflict  or  confusion  regarding  respon- 
sibility for  work  to  be  performed,  no  overlapping  of  juris- 
dictions, no  duplication  of  work,  plant  or  organization 
which  cannot  be  immediately  adjusted. 

In  a  Multiple  Government  the  reverse  of  this  is  largely 
true.  The  powers  of  government  are  divided  among  as 
many  sets  of  officials  as  there  are  central  government  and 
major  political  divisions.  The  organs  of  government,  in- 
stead of  being  part  of  one  highly  integrated  piece  of  admin- 
istrative machinery,  are  parts  of  as  many  different  adminis- 
trative systems.  Being  coordinate  as  regards  their  status, 
there  is  no  way  by  which  their  energies  can  be  directed  to  a 


DISTRIBUTION  TERRITORIALLY  199 

common  end  except  by  way  of  securing  a  voluntary  agree- 
ment on  the  part  of  the  several  systems  to  cooperate.  This 
is  something  which  it  is  often  difficult  if  not  impossible  to 
secure.  The  particular  interests  of  the  several  divisions  are 
not  always  identical,  and,  when  this  is  the  case,  each  is  apt 
to  prefer  what  seems  to  be  its  own  interests  over  those  of 
the  State  as  a  whole.  More  serious  still  this  difference  of 
interests  may  bring  the  several  divisions  into  sharp  conflict 
with  each  other  or  collectively  into  conflict  with  the  central 
government. 

When  the  fields  of  activities  are  not  sharply  defined  there 
Is  certain  to  be  conflicts  of  jurisdiction,  overlapping  of  au- 
thorities and  a  greater  or  less  duplication  of  work,  plant 
and  organization.  This  condition  of  affairs  is  revealed  at 
scores  of  points  in  the  federal  system  of  the  United  States. 
We  need  only  cite  the  cases  of  conflict  that  result  in  the 
attempt  to  regulate  the  rates  and  conditions  of  service  of 
railways,  telegraphs,  long  distance  telephones,  pipe  lines  and 
other  means  of  transportation,  to  control  the  organization 
and  operation  of  industrial  corporations,  to  work  out  proper 
systems  of  taxation,  and  to  develop  the  material  resources 
of  the  country  where  authority  is  divided  among  as  many 
bodies  as  there  are  major  divisions. 

Even  when  there  is  no  conflict  of  interests  great  loss  often 
results  when  a  given  work  is  not  under  a  single  direction. 
Had  the  United  States  a  Unitary  Government  all  of  the  topo- 
graphic, geological  and  other  survey  services  of  the  several 
states,  all  of  their  forestry,  fishery  and  analogous  services 
would  be  coordinated  into  single  united  systems  for  the  pro- 
motion of  the  several  ends  for  which  they  have  been  created 
instead  of  constituting  independent  services  often  working 
at  cross  purposes.  Under  the  latter  system  a  large  duplica- 
tion of  plant  and  work  is  inevitable.  Each  must  have  its 


200      THE  GOVERNMENT  OF  MODERN  STATES 

own  facilities  in  the  way  of  laboratories,  shops,  etc.,  though 
in  many  cases  a  single  or  a  few  central  plants  would  suffice 
to  meet  the  needs  of  all. 

Many  of  these  disadvantages  are  not  absolutely  essential 
features  of  the  multiple  system,  since  it  is  possible  to  avoid 
them  under  the  latter  system.  The  point  that  it  is  here  de- 
sired to  make  is  that  the  difficulty  in  doing  so  is  far  greater 
under  this  system  than  it  is  under  the  unitary  system.  In- 
deed under  the  latter  system  they  are  in  great  part  hardly 
present. 

The  Problem  of  Local  Self-Government  under  a  Uni- 
tary and  a  Multiple  Government. —  The  chief  if  not  the 
only  advantage  claimed  for  the  multiple  type  of  government 
is  that  under  this  system  it  is  possible  to  secure  that  decen- 
tralization in  the  administration  of  governmental  affairs, 
local  autonomy,  local  self-government,  or  power  on  the 
part  of  each  community  to  determine  for  itself  how  its  own 
particular  affairs  shall  be  administered,  which  is  generally 
agreed  to  be  desirable.  In  no  small  degree  the  preference 
that  is  shown  by  communities  living  under  this  form  of  gov- 
ernment is  due  to  this  feeling.  In  the  minds  of  the  general 
public,  and,  indeed,  in  those  of  many  students  of  political 
science,  this  is  the  essential  difference  between  the  two  sys- 
tems. Deep-rooted  as  this  belief  is,  it  is  erroneous.  There 
is  nothing  in  the  unitary  form  of  government  which  does 
not  permit  of  as  great  a  decentralization  in  the  actual  exer- 
cise of  governmental  powers,  or  the  conferring  of  as  great 
autonomy  or  powers  of  self  government  upon  political  sub- 
divisions as  can  be  secured  in  a  Multiple  Government. 
Thus,  for  example,  it  is  apparent  that  if  the  framers  of  our 
constitution  had  conferred  all  governmental  powers  upon 
our  central  government  that  government  could  have  at  once 
proceeded,  by  legislative  act,  to  divide  the  country  into 


DISTRIBUTION  TERRITORIALLY  201 


major  divisions  corresponding  to  the  existing  states  and 
have  conferred  upon  them  precisely  the  same  powers  and 
form  of  government  that  they  now  enjoy;  or,  if  it  were 
deemed  wiser  policy,  have  granted  to  the  electorates  of  these 
divisions  the  right  to  frame  their  own  constitutions.  This 
is  precisely  what  the  states  do  in  providing  for  the  division 
of  their  territories  into  counties,  townships,  municipal  dis- 
tricts, etc.  That,  under  a  Unitary  Government,  large  au- 
tonomy and  powers  of  self-government  can  be  given  to 
major  political  divisions  needs  no  better  demonstration  than 
the  manner  in  which  provision  has  been  made  by  the  United 
States  for  the  government  of  its  territories  and  dependen- 
cies. It  would  be  difficult  to  frame  a  system  under  which 
an  administration  of  the  local  affairs  was  more  completely 
vested  in  the  local  government  than  is  the  case,  for  example, 
in  Porto  Rico  today. 

The  confusion  of  thought  that  exists  in  respect  to  this 
matter  arises  from  a  failure  to  distinguish  between  a  cen- 
tralization of  authority  and  a  centralization  in  respect  to  the 
use  of  this  authority.  A  really  centralized  government  is 
one  in  which  the  central  government,  instead  of  making  use 
of  agencies  to  which  large  powers  of  discretion  are  granted, 
attempts  itself  directly  to  administer  local  affairs.  It  is  in 
this  sense  that  France,  in  comparison  with  other  countries, 
has  a  highly  centralized  government,  not  because  it  has 
adopted  the  unitary  form  of  government. 

The  Establishment  of  Multiple  Governments  Due  Al- 
most Wholly  to  Historical  Reasons. —  It  may  be  asked 
how  it  has  come  about  that,  notwithstanding  the  easily 
demonstrable  superiority  of  the  unitary  over  the  multiple 
form  of  government,  the  latter  form  has  been  adopted  by 
so  many  of  the  most  important  and  politically  most  en- 
lightened nations.  The  answer  to  this  is  that  the  decision 


202      THE  GOVERNMENT  OF  MODERN  STATES 

has  been  dictated,  not  by  a  calm  weighing  of  the  relative 
merits  of  the  two  systems,  but  by  historical  conditions 
which  have  made  this  the  only  choice  possible.  Few  States 
which  have  once  enjoyed  independence  are  willing  to  ex- 
change their  independence  for  the  status  of  a  mere  depart- 
ment or  province  in  a  larger  State.  Only  stern  necessity 
will  induce  them  to  make  that  partial  surrender  which  is 
involved  in  becoming  a  member  of  a  Confederation  or  a 
Federation.  Examination  of  the  circumstances  under 
which  the  great  States  now  possessing  a  Federal  Govern- 
ment, the  United  States,  Germany  and  Switzerland;  adopted 
that  form  of  government  shows  that  in  each  case  the  State 
itself  was  established  by  the  union  of  what  had  formerly 
been  independent  States.  In  each  case  also  the  establish- 
ment of  a  single  State  with  Multiple  Government  was  pre- 
ceded by  an  effort  on  the  part  of  the  constituent  States  to 
effect  a  union  in  which  their  separate  sovereignties  would 
be  preserved  by  leaguing  themselves  into  a  Confederacy. 
It  was  only  after  a  loose  union  of  this  character  had  wholly 
failed  to  meet  the  necessities  of  the  situation  that  they  were 
willing  to  take  the  next  step,  that  of  forming  a  Federation 
which  should  constitute  a  single  State  but  in  which  each  of 
the  formerly  independent  States  should  still  retain  that 
larger  measure  of  autonomy  or  independence  of  the  common 
government  which  is  the  distinguishing  characteristic  of 
the  federal  type  of  government.  It  was  only  with  the 
greatest  difficulty  that  the  several  constituent  States  could 
be  induced  to  take  this  step.  The  establishment  at  that 
time  of  a  Unitary  Government  was  an  historical  impossi- 
bility. 

The  Multiple  Governments  of  Central  and  South 
America. —  The  only  instances  where  a  Multiple  Govern- 
ment has  been  established,  except  as  the  means  through 


DISTRIBUTION  TERRITORIALLY  203 

which  a  number  of  previously  independent  States  were  in- 
duced to  constitute  themselves  into  a  single  State,  are  fur- 
nished by  certain  of  the  Central  and  South  American  States, 
notably,  Mexico,  Brazil  and  Argentina.  Here  the  motive 
was  the  desire  to  follow  the  example  of  the  United  States. 
The  success  of  the  latter  in  establishing  a  government  that 
at  once  rested  upon  the  principles  of  popular  sovereignty 
and  gave  large  power  of  self-government  to  the  several 
divisions  of  the  country,  was  believed  to  be  due  in  large 
part  if  not  entirely  to  the  adoption  by  it  of  the  multiple 
form  of  government.  In  this  it  is  evident  that  they  were 
laboring  under  a  mistake.  In  view  of  our  present  knowl- 
edge of  the  essential  differences  between  the  two  systems 
and  their  relative  merits  this  decision  cannot  be  deemed  to 
have  been  other  than  a  political  blunder.  Apart  from  other 
disadvantages  that  have  resulted,  the  difficulties  that  these 
States  have  had  in  maintaining  a  stable  government  must 
in  part  at  least  be  attributed  to  their  failure  to  concentrate 
all  governmental  powers  in  a  single  strong  central  govern- 
ment. 

Adoption  of  the  Unitary  Type  of  Government  by 
South  Africa  and  China. —  It  is  a  matter  of  no  little  sig- 
nificance that  the  two  communities  which  have  most  re- 
cently been  called  upon  to  make  a  decision  regarding  the 
character  of  government  that  they  should  have,  South 
Africa  and  China,  have  decided  in  favor  of  the  establish- 
ment of  a  Unitary  Government.  This  decision  is  all  the 
more  remarkable  since,  in  each  case,  the  conditions  were 
not  dissimilar  from  those  which  had  led  to  the  establish- 
ment of  Federal  Governments  by  other  countries  in  the 
past.  The  Union  of  South  Africa  was  established  by 
bringing  under  one  government  political  divisions  which 
not  only  had  previously  had  no  political  connection  with 


204      THE  GOVERNMENT  OF  MODERN  STATES 

each  other,  except  in  so  far  as  they  owed  a  common  alle- 
giance to  Great  Britain,  but  had  but  recently  emerged  from 
a  war  in  which  they  had  taken  different  sides.  In  the  case 
of  China  the  problem  was  that  of  establishing  a  general 
government  for  provinces  and  districts  which  it  is  true  had 
had  a  common  allegiance  to  the  Chinese  Emperor,  but  which 
nevertheless  had  long  enjoyed  such  autonomous  powers  as 
to  give  to  them  the  status  of  almost  independent  common- 
wealths. They  had  their  own  armies  and,  even  when  their 
country  was  attacked  by  a  foreign  power,  took  only  such 
part  in  the  contest  as  their  individual  interests  dictated. 

Notwithstanding  these  facts  the  decision  was  made  in 
each  case,  when  the  Union  of  South  Africa  was  effected  in 
1900  and  the  Chinese  Republic  established  in  1911,  to 
adopt  a  Unitary  Government;  that  is,  one  in  which  all  gov- 
ernmental powers  rest  in  the  first  instance  in  a  single  central 
government  and  the  major  political  divisions  have  the  status 
of  provinces  instead  of  that  of  constituent  states.  What 
makes  this  decision  of  special  interest  is  that  in  each  case 
it  was  only  made  after  the  relative  merits  of  a  Unitary  and 
a  Multiple  Government  were  carefully  canvassed;  and,  fur- 
thermore, that  the  difficulties  encountered  by  the  United 
States  in  operating  the  multiple  system  were  in  large  part 
responsible  for  the  choice.  The  decision  indeed  may  be 
taken  as  an  illustration  of  principles  of  political  science 
overcoming  historical  conditions. 

Universal  Tendency  in  Multiple  Governments  to  In- 
crease the  Powers  of  the  Central  Government.— The 
action  of  South  Africa  and  China  in  adopting  a  unitary 
type  of  government  is  but  one  illustration  of  the  fact  that 
the  superior  advantages  of  that  type  of  government  are 
being  more  and  more  recognized.  Of  still  greater  signifi- 
cance is  the  fact  that  in  all  those  States  which  have  made 


DISTRIBUTION  TERRITORIALLY  205 

a  practical  trial  of  Multiple  Government  there  has  been  a 
steady  movement  to  counteract  the  disadvantages  resulting 
from  a  constitutional  distribution  of  governmental  powers 
territorially  by  progressively  increasing  the  powers  of  the 
central  government.  In  large  part  the  amendments  which 
have  been  made  to  the  constitutions  of  Germany  and  Swit- 
zerland have  had  this  for  their  purpose.  No  example  is 
presented  of  the  contrary  action  being  taken. 

In  the  United  States  the  same  result  has  been  accom- 
plished, in  part  by  constitutional  amendment,  but,  chiefly,  by 
giving  to  the  clauses  of  the  constitution  defining  the  powers 
of  the  central  government  a  broadness  of  interpretation 
that  certainly  was  never  in  the  contemplation  of  the  framers 
of  the  constitution.  There  can  be  no  question  but  that  the 
evident  need  that  the  powers  of  the  central  government 
should  be  strengthened  has  led  the  Supreme  Court  to  use 
its  utmost  ingenuity  so  to  construe  the  constitutional  provi- 
sions as  to  permit  of  the  exercise  by  it  of  the  broadest  pow- 
ers possible.  Finally  the  United  States  has  witnessed  a  re- 
markable use  by  the  central  government  of  the  powers  which 
were  granted  to  it.  It  has  entered  many  fields  which  were 
originally  deemed  to  be  the  particular  domain  of  the  several 
states.  We  need  only  cite  the  fields  of  education,  public 
works  and  internal  development  generally.  How  great  has 
been  the  change  may  be  seen  from  the  fact  that  when  the 
proposal  was  made  to  create  the  present  Department  of  the 
Interior  as  one  of  the  executive  departments  of  the  Federal 
Government,  it  was  violently  opposed  upon  the  ground  that 
the  Federal  Government  had  nothing  to  do  with  the  internal 
affairs  of  the  country.  Such  an  attitude  would  be  almost 
incomprehensible  to  the  present  generation. 

The  greatest  evidence  of  the  transformation  of  opinion 
that  has  taken  place  in  the  minds  of  the  people  regarding 


206      THE  GOVERNMENT  OF  MODERN  STATES 

their  government  is,  however,  found  in  the  contrast  between 
their  attitude  towards  the  central  government  and  the  gov- 
ernments of  their  states  in  former  times  and  at  the  present 
day.  It  is  well  known  that  in  the  years  immediately  fol- 
lowing the  adoption  of  the  constitution,  political  honors  in 
the  service  of  the  states  were  preferred  to  those  in  that  of 
the  central  government.  It  was  only  a  few  years,  however, 
before  the  contrary  became  true.  The  steady  growth  of 
nationality,  of  the  feeling  on  the  part  of  the  citizen  that  his 
primary  interest  and  allegiance  was  in  and  to  the  nation  as 
a  whole  rather  than  his  particular  state  is  one  of  the  most 
conspicuous  facts  of  our  political  history.  In  connection 
with  this  is,  not  only  the  constantly  increasing  tendency  to 
look  to  the  central  government  for  action  in  meeting  public 
problems  as  they  arise,  but  the  growing  conviction  that  only 
by  such  action  can  many  of  our  most  pressing  problems  be 
satisfactorily  solved.  That  the  old  school  of  state  rights 
is  steadily  losing  its  hold  upon  the  people  can  hardly  be 
questioned.  In  its  place  is  arising  the  new  school  of  na- 
tionalism and  it  is  well  within  the  possibilities  of  the  future 
that  the  principles  of  this  school  will  sooner  or  later  be  made 
the  fundamental  doctrine  of  one  of  our  great  political  par- 
ties. 

Interpretation  of  These  Historical  Facts. —  If  now  an 
attempt  is  made  to  interpret  these  historical  facts  there 
would  seem  to  be  no  escape  from  the  important  conclusion 
that  the  adoption  of  a  multiple  form  of  government  repre- 
sents but  an  intermediary  stage  in  the  political  development 
of  the  modern  State.  The  problem  presented  is  that  of 
creating  a  strong  single  State  out  of  a  number  of  previously 
independent  States.  The  effecting  of  such  an  operation 
can  only  be  had  step  by  step.  The  desire  for  union  first 
finds  expression  in  the  formation  of  a  loose  union,  or  league, 


DISTRIBUTION  TERRITORIALLY  207 

rn  as  a  Confederation.  From  this  the  next  advance  is 
to  the  formation  of  a  real  union  known  as  a  Federation  in 
which  a  single  State  is  created,  but  a  large  concession  is 
made  to  the  old  feeling  of  separateness  of  interests  by  the 
adoption  of  the  multiple  type  of  government  under  which 
only  certain  powers  of  government  are  conferred  upon  the 
central  authority.  This  step  made,  there  immediately  de- 
velops a  steady  growth  of  the  spirit  of  nationalism  and,  in 
response  to  needs  actually  felt,  a  progressive  development, 
both  absolutely  and  relatively,  of  the  powers  of  the  central 
government  as  opposed  to  those  of  the  states.  So  marked 
is  this  that  it  may  almost  be  said  that  from  the  moment  the 
system  of  Multiple  Government  is  adopted  the  tendency  is 
for  efforts  to  be  made  to  get  away  from  the  consequences 
of  the  decision  that  has  been  made.  This  attempt,  how- 
ever, is  in  large  part  an  unconscious  one.  The  result  is 
that  the  movement  towards  a  unitary  form  of  government 
takes  the  several  forms  of  action  which  we  have  described 
rather  than  steps  looking  to  the  deliberate  change  in  the 
form  of  government.  Only  after  this  movement  has  gone 
a  long  way,  and  a  people  have  come  to  a  full  realization  of 
the  essential  differences  between  the  two  systems,  and  their 
relative  advantages,  can  the  taking  of  the  final  step  be  made. 
This  superiority  of  the  unitary  type  of  government  over 
the  multiple  and  its  tendency  to  prevail  is  excellently  stated 
by  President  Frank  J.  Goodnow  in  his  work  on  Social  Re-v 
form  and  the  Constitution.  After  considering  briefly  the 
extent  to  which  the  more  recent  Federations,  Australia,  Can- 
ada and  Germany,  have  given  greater  powers  to  the  central 
government  than  in  the  case  of  the  United  States,  he  con- 
cludes : 

It  may  therefore  be  said  that  the  experience  of  the  civilized 
world  since  our  constitution  was  adopted  is  opposed  to  a  system  of 


208      THE  GOVERNMENT  OF  MODERN  STATES 

Federal  Government  which  fixes  inalterably  and  in  accordance  with 
some  political  theory  of  universal  application  the  jurisdiction  of 
the  national  and  state  governments.  Furthermore  the  recently 
established  systems  of  Federal  Government  accord  greater  power 
to  the  national  government  than  is  ordinarily  believed  to  be  ac- 
corded by  our  constitution  to  the  national  government  of  the 
United  States.  We  are  justified  therefore  in  assuming  that  if  the 
American  people  were  called  upon  at  the  present  time  to  frame  a 
scheme  of  Federal  Government  they  would  adopt  one  which  de- 
parted in  a  number  of  respects  from  the  one  under  which  we  now 
live,  and  which  would  resemble  that  of  Germany  or  Canada  in 
that  it  would  make  provision  for  greater  ease  of  constitutional 
amendment  and  for  securing  to  the  national  government  greater 
powers  than  are  believed  by  many  to  be  accorded  to  the  government 
of  the  United  States  under  the  present  constitution. 

But  we  are  led  to  such  a  conclusion,  not  alone  by  the  experience 
of  the  countries  in  question  but  as  well  by  the  difficulties  we  en^ 
counter  in  our  own  country  in  our  attempts  to  solve  the  problems 
which  press  upon  us  with  the  greatest  insistence. 

In  thus  pronouncing  as  we  have  in  favor  of  the  intrinsic 
merits  of  the  unitary  type  of  government  we  should  not, 
however,  close  our  eyes  to  the  immense  service  which  the 
development  of  the  idea  of  Multiple  Government  has  ren- 
dered, and  is  rendering,  in  knitting  together  under  a  com- 
mon government  peoples  whose  political  interests  are 
largely  identical.  It  is  more  than  probable  that  some  of 
the  great  problems  of  State  formation  now  presented  in  the 
case  of  the  Balkan  and  other  Slav  countries  can  only  be 
solved  by  recourse  to  this  type  of  government.  The  press- 
ing character  of  these  problems  is  in  part  our  justification 
of  the  amount  of  attention  that  we  have  paid  to  this  subject. 

Determination  of  the  Powers  of  the  Central  Govern- 
ment and  Those  of  the  Constituent  States  in  a  Multiple 
Government. —  Having  reached  a  decision,  whether  as  the 
result  of  historical  accident  or  of  deliberate  choice,  segard- 


DISTRIBUTION  TERRITORIALLY  209 

ing  the  manner  in  which  the  territory  of  a  State  shall  be 
divided  for  governmental  purposes,  there  is  next  presented 
the  problem  of  determining  the  specific  powers  that  shall 
be  assigned  to  the  several  political  divisions. 

Examination  of  this  problem  shows  that  this  distribution 
of  powers  can  be  made  in  three  ways :  ( i )  by  enumerating 
in  detail  the  powers  which  are  granted  to  the  central  and 
the  state  governments,  respectively;  (2)  by  specifying  the 
powers  granted  to  the  central  government  and  declaring 
that  all  the  remaining  powers  of  government  shall  belong 
to  the  state  governments;  or  (3)  by  specifying  the  powers 
granted  to  the  state  governments  and  declaring  that  all  the 
remaining  powers  of  government  shall  belong  to  the  central 
government. 

For  reasons  which  are  easily  apparent  the  first  of  these 
methods  is  rarely  if  ever  employed.  Its  adoption  would 
require  a  complete  enumeration  of  the  powers  of  govern- 
ment, something  which  as  yet  has  never  been  satisfactorily 
accomplished,  if  indeed,  owing  to  constantly  changing  con- 
ditions and  political  ideas,  it  is  possible  of  accomplishment 
in  any  way  that  would  be  permanently  satisfactory.  The 
attempt  to  follow  this  method  would  not  only  give  rise  to 
the  grave  danger  that  omissions  would  be  made,  with  the 
result  that  neither  the  central  nor  the  state  government 
would  have  powrers  which  one  or  the  other  should  have,  6ut 
would  certainly  lead  to  confusion  due  to  the  practical  im- 
possibility of  so  specifying  the  powers  that  they  would  be 
mutually  exclusive.  It  is  evident,  therefore,  that  no  matter 
what  the  distribution  of  powers  desired  it  can  be  better 
obtained  by  employing  one  or  the  other  of  the  last  two 
methods.  In  practice,  therefore,  the  real  choice  of  methods 
may  be  said  to  lie  between  these  two. 

The  decision  in  regard  to  this  question  —  whether  the 


2id      THE  GOVERNMENT  OF  MODERN  STATES 

central  government  shall  be  one  of  enumerated  and  the 
state  governments  one  of  residuary  powers,  or  vice  versa 
—  is  a  matter  of  the  utmost  importance.  The  importance 
of  this  choice  consists  in  the  fact  that  the  field  of  govern- 
ment is  constantly  widening.  Steadily  increasing  demands 
are  being  made  upon  governments  to  assume  duties  which 
in  earlier  times  were  believed  to  be  beyond  their  province. 
From  entrance  into  these  unoccupied  fields  the  government 
of  enumerated  powers  is  largely  barred.  It  has  within  it- 
self but  limited  powers  of  growth  and  development.  It  is, 
moreover,  a  well-accepted  principle  of  legal  interpretation 
that  when  powers  are  enumerated  they  must  be  strictly  con- 
strued. Before  a  government  of  enumerated  "powers  can 
assume  a  new  duty  it  must  be  in  a  position  to  show  affirma- 
tively that  such  duty  falls  within  the  grant  of  powers  that 
has  been  made  to  it.  The  government  of  unenumerated  or 
residuary  powers  is  subject  to  no  such  limitation.  It  can 
enter  any  field  from  which  it  has  not  been  expressly  de- 
barred by  positive  constitutional  provisions.  Subject  to 
this  limitation  it  has  to  show  no  authority  for  its  action. 

An  examination  of  systems  of  Multiple  Government  now 
in  existence  shows  that  all  Federal  Governments  represent- 
ing sovereign  States  have  adopted  the  policy  of  making 
their  central  governments  ones  of  enumerated  and  their 
state  governments  ones  of  residuary  powers.  This  is  the 
system  of  the  United  States,  Germany  and  Switzerland. 
In  the  case  of  the  United  States  this  point  is  covered  by  the 
Tenth  Amendment  which  provides  that  "  the  powers  not 
delegated  to  the  United  States  by  the  constitution  nor  pro- 
hibited by  it  to  the  states,  are  reserved  to  the  states  respec- 
tively, or  to  the  people.'*  The  reasons  for  the  adoption  of 
this  policy  are  largely  historical.  The  federal  union  was 
in  each  case  formed  by  the  union  of  previously  independent 


DISTRIBUTION  TERRITORIALLY  211 

sovereign  States.  At  the  time  of  the  union  the  latter  de- 
sired to  retain  to  themselves  all  governmental  powers  ex- 
cept such  as  it  was  plainly  necessary  to  confer  upon  the 
central  government  in  order  that  an  effective  union  might  be 
established. 

For  many  purposes  it  is  desirable,  however,  to  consider 
the  governments  of  the  Dominion  of  Canada  and  Australia 
as  examples  of  Multiple  Governments.  Though  they  are 
not  sovereign  States,  they  have,  as  regards  the  administra- 
tion of  their  internal  affairs,  an  autonomy  almost  equal  to 
that  of  independent  States.  For  the  administration  of 
these  internal  affairs  they  have  a  system  of  government  con- 
sisting of  a  central  government  and  governments  of  prov- 
inces analogous  to  that  of  the  United  States.  Of  these  two, 
Australia  has  followed  the  method  of  distributing  powers 
adopted  by  the  United  States,  Germany  and  Switzerland. 
Canada.has,  however,  adopted  the  reverse  system  of  making 
its  provincial  governments  ones  of  enumerated  and  its  cen- 
tral government  a  government  of  residuary  powers.  Its 
government  in  fact  constitutes  the  only  example  of  this 
method.  For  this,  if  for  no  other  reason,  it  is  one  of  great 
interest  to  the  student  of  political  science. 

If  called  upon  to  decide  regarding  the  relative  advantages 
of  these  two  methods,  the  preference  should  unhesitatingly 
be  given  to  the  Canadian  system.  The  prime  reason  for 
doing  so  lies  in  the  fact  that  a  leading  feature  of  the  evolu- 
tion that  is  now  taking  place  in  social  conditions  is  the 
breaking  down  of  local  barriers  and  the  conversion  of  mat- 
ters which  were  formely  of  purely  local  interest  into  ones  of 
general  concern.  This  tendency  is  seen  in  almost  every 
field.  However  one  may  for  sentimental  reasons  regret  it, 
the  fact  nevertheless  is  that  more  and  more  the  problems  of 
society  are  becoming  ones  which  can  only  be  met  by  an  au- 


212      THE  GOVERNMENT  OF  MODERN  STATES 

thority  representing  the  general  interest.  It  is  desirable 
therefore  that  the  central  government  shall  have  as  free  a 
hand  as  possible  to  meet  these  new  conditions  as  they  arise. 
It  is  impossible  to  calculate  the  obstacles  that  the  adoption 
of  the  contrary  system  has  thrown  in  the  way  of  the  United 
States  meeting  the  problems  of  government  with  which  it 
has  been  and  is  now  being  called  upon  to  meet.1 

Relations  between  the  Central  Government  and  those 
of  Constituent  States  in  a  Multiple  Government. —  The 
great  advantages  of  a  Unitary  Government  over  a  Multiple 
Government  are,  as  we  have  seen,  its  strength,  simplicity 
and  flexibility  in  operation.  It  is  strong  since  all  authority 
is  concentrated  in  a  single  organization  and  can  be  fully 
brought  to  bear  at  any  time.  It  is  simple,  since  the  problem 
is  not  presented  of  rigidly  defining  the  respective  jurisdic- 
tion of  the  central  government  and  that  of  its  political  sub- 
divisions. It  is  flexible  in  operation  since  the  distribution 
of  powers  and  duties  that  is  made  between  the  central  gov- 
ernment and  that  of  its  political  subdivisions  can  at  any 
time  be  altered  by  mere  legislative  act. 

In  contrast  with  this  a  Multiple  Government  is  relatively 
weaker  since  authority  is  divided.  It  is  more  rigid  in 
operation  since  changes  in  the  distribution  of  governmental 
powers  can  only  be  made  through  the  process  of  formal 
constitutional  amendment.  It  is  more  complex,  since,  with 
a  number  of  distinct  organizations,  the  problem  is  presented, 
not  only  of  defining  the  respective  jurisdictions  of  these 
bodies,  but  their  relations  to  each  other.  This  last  problem 
is  one  of  such  importance  and  is  of  such  direct  concern  to 

iFor  an  admirable  discussion  of  the  superior  advantages  of  the 
Canadian  over  the  American  system,  see  the  paper  of  Professor  Stephen 
Leacock  in  the  Proceedings  of  the  American  Political  Science  Associa- 
tion, Vol.  V,  1908,  on  "  The  Limitations  of  Federal  Government." 


• 


DISTRIBUTION  TERRITORIALLY  213 

us  since  we  are  living  under  a  Multiple  Government  that 
it  is  desirable  to  give  it  special  consideration. 

The  starting  point  for  a  consideration  of  this  question 
is  the  recognition  of  the  fact  that,  in  principle,  a  Multiple 
Government  stands  for  a  governmental  system  in  which 
each  government  is  as  nearly  as  possible  a  self  contained 
organism  and  where  the  only  organic  relation  between  the 
several  governments  is  their  common  subordination  to  the 
same  sovereign  authority.  Under  this  system  each  govern- 
ment has  its  own  field  of  activities  and  its  own  set  of  organs 
and  offices  through  which  to  act.  Each  is  independent  of  * 
the  other  government.  Each  revolves  in  its  own  orbit,  and 
joint  action  can  only  be  had  through  the  voluntary  agree- 
ment on  the  part  of  two  or  more  governments  to  cooperate 
!  for  a  common  or  mutual  end. 

In  practice  the  principle  of  Multiple  Government  has 
[never  been  pushed  to  this  extreme,  though,  as  will  be  seen, 
the  United  States  has  gone  a  long  way  in  this  direction. 
As  the  matter  of  the  interrelations  of  governments  within  a 
Multiple  Government  is  one  of  departure  from,  rather  than 
the  following  of,  a  principle,  it  can  be  best  considered  by 
examining  the  character  of  the  relations  which  have  ac- 
tually been  provided  for  in  the  leading  Multiple  Govern- 
ments now  in  operation.  This  can  be  most  advantageously 
done  by  describing  the  constitutional  system  of  the  United 
States,  as  regards  this  point  and  pointing  out  the  features  in 
respect  to  which  the  governments  of  the  other  two  leading 
examples  of  Multiple  Governments  vary  from  the  pro- 
visions thus  made. 

Intergovernmental  Relations  in  the  United  States. — 
An  analysis  of  the  question  of  intergovernmental  relations 
in  a  Multiple  Government  shows  that  in  it  are  involved  two 


214      THE  GOVERNMENT  OF  MODERN  STATES 

distinct  questions:  (i)  the  relations  between  the  central 
government  and  thos'e  of  the  constituent  states  and  (2)  the 
relations  between  the  several  constituent  states.  We  will 
consider  each  of  these  in  turn. 

Relations  between  the  Central  and  the  State  Govern- 
ments.—  In  studying  any  governmental  system  the  point 
to  which  attention  should  first  be  directed  is  that  of  the 
manner  in  which  its  constitution  is  adopted,  revised  and 
amended.  Complete  independence  of  the  central  and  state 
governments  would  require  that  each  should  maintain  rela- 
tions with  its  electorate  without  any  intervention  or  partici- 
pation on  the  part  of  any  other  government.  In  the  Ameri- 
can constitutional  system  such  independence  is  enjoyed  by 
the  governments  of  the  several  states  but  not  by  the  central 
government.  Each  state  determines  for  itself  the  manner 
in  which  its  constitution  shall  be  adopted  and  subsequently 
modified. 

Action  in  respect  to  the  adoption,  revision  and  amendment 
of  the  federal  constitution,  however,  is  only  had  through  the 
states.  The  final  adoption  of  the  constitution  was  had 
through  ratification  by  the  states,  not  by  the  general  elector- 
ate. In  respect  to  the  matter  of  its  subsequent  revision  or 
amendment,  the  constitution  calls  for  a  participation  by 
the  states  in  both  the  proposal  and  ratification  of  changes. 
As  regards  the  proposal  of  amendments  it  thus  provides 
that,  in  addition  to  the  right  which  is  conferred  upon  Con- 
gress to  propose  amendments,  the  states,  if  two-thirds  of 
their  number  concur,  can  demand  the  calling  of  a  convention 
for  the  proposal  of  amendments.  As  regards  ratification 
action  must  in  all  cases  be  had  by  the  states,  either  through 
their  legislatures  or  through  conventions  specially  constituted 
for  the  purpose,  according  as  one  or  the  other  method  is 
prescribed  by  Congress.  Ratification  in  either  case  is  thus 


DISTRIBUTION  TERRITORIALLY  215 


bad  by  the  states  even  though  the  latter  in  reaching  a  de- 
:ision  may  be  required  specially  to  consult  their  electorates 
:h rough  the  assembling  of  conventions  to  consider  the  ques- 
don  of  ratification.  That  it  is  the  states  rather  than  the  na- 
:ional  electorate  which  exercise  the  power  of  ratification  is 
evidenced  by  the  fact  that  the  vote  of  each  state  has  the  same 
vveight  as  that  of  any  other  state  regardless  of  its  popula- 
ion  or  size  of  its  electorate.  As  the  result  of  this  system 
t  is  quite  possible,  not  only  for  a  small  minority  of  the 
lational  electorate  to  prevent  the  adoption  of  an  amend- 
ment, but  for  a  minority  actually  to  secure  a  change  against 
he  will  of  a  majority. 

In  this  vital  respect,  therefore,  we  see  that  the  central 
government,  instead  of  being  independent  of,  is  directly 
dependent  upon  the  governments  of  the  several  states.  The 
jxistence  of  these  provisions  in  the  opinion  of  the  author 
joes  a  long  way  towards  supporting  the  contention  gen- 
erally held  by  the  Southern  States  before  the  civil  war,  that 
:he  central  government  was  one  established  by  the  states 
•ather  than  by  the  people  of  the  United  States.  For- 
:unately,  however,  that  war  once  for  all  established  the  con- 
;rary  contention  that  the  central  government  represented  the 
people  directly  even  though  use  was  made  of  the  states  in 
determining  the  will  of  the  people. 

The  next  point  of  importance  in  considering  the  relations 
}f  a  central  and  state  government  is  that  of  the  question  as 
;o  which  shall  prevail  when  their  action  conflicts.  Here 
:he  position  is  taken  that  the  central  government  shall  be 
deemed  to  be  the  superior  authority.  This  is  clearly  set 
forth  in  the  provision  of  the  constitution  which  provides 
:hat: 

This  constitution  and  the  laws  of  the  United  States  which  shall 
3e  made  in  pursuance  thereof;  and  all  treaties  made,  or  which 


216      THE  GOVERNMENT  OF  MODERN  STATES 

shall  be  made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land,  and  the  judges  in  every  state  shall 
'be  bound  thereby,  anything  in  the  constitution  or  laws  of  any  state 
/    ito  the  contrary  notwithstanding.     (Art.  VI,  p.  2.) 

It  is  unnecessary  for  us  to  dwell  upon  the  importance  of 
this  provision.  It  means,  not  only  that  the  central  govern- 
ment shall  be  deemed  to  be  the  superior  political  authority; 
that  its  laws,  if  within  the  powers  granted  to  it,  shall  pre- 
vail; but  that  the  decision  of  all  disputes  regarding  the  re- 
spective jurisdiction  and  powers  of  the  two  governments 
shall  rest  with  it,  this  decision  being  made  by  its  judiciary. 

Another  feature  in  respect  to  which  one  government  may 
be  dependent  upon  another  is  where  provision  is  made  that 
action  by  one  government  can  be  taken  in  respect  to  cer- 
tain matters,  only  after  the  approval  of  the  other  govern- 
ment has  been  obtained.  This  feature  exists  only  to  a  very 
limited  extent  in  the  governmental  system  of  the  United 
States.  The  only  cases  in  which  it  exists  are  those  covered 
by  the  following  provisions  of  the  federal  constitution : 

No  state  shall,  without  the  consent  of  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws;  and  the  net  produce 
of  all  duties  and  imposts,  laid  by  any  state  on  imports  or  exports, 
shall  be  for  the  use  of  the  Treasury  of  the  United  States;  and  all 
such  laws  shall  be  subject  to  the  revision  and  control  of  the  Con- 
gress. (Art.  I,  Sec.  10,  p.  2.) 

No  state  shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,  keep  trops,  or  ships  of  war  in  time  of  peace,  enter 
into  any  agreement  or  compact  with  another  State,  or  with  a  for- 
eign power,  or  engage  in  war,  unless  actually  invaded  or  in  such 
imminent  dangers  as  will  not  ad^iit  of  delay.  (Art.  I,  Sec.  10,  p. 
3-) 

These  two  paragraphs  were  inserted  in  the  constitution  as 
a  part  of  the  provisions  having  for  their  purpose  the  speci- 


DISTRIBUTION  TERRITORIALLY  217 

fication  of  the  jurisdiction  of  the  state  governments.  In 
practice  they  have  acted  almost  as  prohibitions,  since  little 
or  no  attempt  has  ever  been  made  by  the  states  to  secure 
the  approval  of  the  central  government  and  the  taking  of 
the  action  covered  by  them.  As  far  as  practical  results 
are  concerned,  they  might  almost  as  well  have  been  made 
absolute  prohibitions  in  so  far  as  state  action  is  concerned. 
No  case  exists  where  action  by  the  central  government  is 
dependent  upon  the  securing^  of  the  approval  of  the  state 
governments,  except  in  respect  to  the  matters  of  constitu- 
tional amendments  as  above  described. 

Still  another  way  in  which  a  central  and  state  govern- 
ment may  maintain  relations  with  each  other  is  through  the 
right  which  one  government  may  have  to  call  upon,  or  re- 
ceive, the  assistance  of  the  other  government.  The  only 
provision  for  action  of  this  kind  contained  in  the  federal 
constitution  is  that  contained  in  the  section  which  provides 
that: 

The  United  States  shall  guarantee  to  every  state  in  this  union  a 
republican  form  of  government  and  shall  protect  each  of  them 
against  invasion;  and  on  application  of  the  legislature,  or  of  the 
executive  (when  the  legislature  cannot  be  convened)  against  do- 
mestic violence.  (Art.  IV,  Sec.  4.) 

This  means  that  upon  the  central  government  falls  the 
ultimate  responsibility  for  maintaining  intact  the  general 
governmental  system  created  by  the  adoption  of  the  con- 
stitution of  the  United  States. 

Turning  now  to  the  field  of  administration  we  find  two 
directly  opposite  systems  open  for  adoption  by  Multiple 
Governments.  The  one  is  where,  as  far  as  circumstances 
will  permit,  duplication  of  officers  is  avoided  by  the  cen- 
tral government  making  use  of  the  officers  of  the  constituent 


218      THE  GOVERNMENT  OF  MODERN  STATES 

states  or  vice  versa.  The  other  is  where  each  government 
is  provided  with  its  own  independent  set  of  officials.  The 
first  of  these  two  systems  is  the  one  which  has  been  adopted 
by  Germany,  the  second  the  one  adopted  by  the  United 
States. 

In  Germany,  though  the  central  government  has  its  own 
distinct  sphere  of  activities,  use  is,  as  far  as  possible,  made 
of  officials  of  the  constituent  states  for  the  actual  conduct 
of  its  affairs.  Thus,  though  the  central  government  estab- 
lishes a  system  of  customs  dues  which  is  uniform  for  the 
whole  empire  and  the  income  from  which  is  covered  into 
the  central  treasury,  the  actual  collection  of  these  dues  is 
made  by  officials  of  the  states.  The  only  purely  central 
officials  are  those  which  are  required  to  supervise  and  con- 
trol the  administration  of  this  system.  The  same  is  true 
of  almost  all  other  branches  of  the  government  service,  not 
even  excepting  the  military  establishments.  Each  state 
maintains  its  own  army.  These  are  united  in  a  force  avail- 
able for  a  common  use  in  a  war  of  offense  or  defense  only 
through  stringent  provisions  regarding  the  obligation  of 
each  state  to  maintain  its  army  at  a  certain  standard  of 
strength  through  the  authoritative  powers  by  the  central 
government  to  prescribe  the  scheme  of  organization,  equip- 
ment, etc.,  and  through  the  possession  by  the  central  gov- 
ernment of  general  powers  of  direction  and  command  in 
the  case  of  war. 

The  only  notable  exception  to  this  policy  of  making  use 
of  state  officials  for  federal  purposes  exists  in  the  case  of 
the  navy.  The  navy,  unlike  the  army,  is  a  purely  federal 
service.  Its  officers  and  men  from  the  lowest  seamen  to 
the  officers  highest  in  command  are  purely  federal  officers. 

The  same  policy  has  been  pursued  in  the  organization  of 
the  judicial  system.  Instead  of  two  independent  judicial 


DISTRIBUTION  TERRITORIALLY  219 

establishments,  Germany  has  but  one  set  of  courts  in  which 
are  tried  all  cases  whether  arising  under  laws  of  the  Empire 
or  of  the  several  states.  All  of  these  courts  are,  with  the 
exception  of  the  superior  provincial  courts  and  the  supreme 
court,  state  tribunals.  Under  the  German  system,  there- 
fore, the  administrative  system  of  the  central  government 
and  the  states  are  as  far  as  possible  integrated  into  a  single 
system. 

In  the  United  States  no  such  effort  has  been  made  to  have 
a  single  set  of  officials  serve  as  agents  for  carrying  into 
effect  the  wishes  of  the  two  governments.  The  central 
government  and  the  state  governments  maintain  absolutely 
independent  services  for  all  purposes.  This  means  a  com- 
plete duplication  of  authorities  for  the  performance  of  all 
of  the  general  functions  of  government  and  a  correspond- 
ing duplication  in  respect  to  the  performance  of  those  spe- 
cial functions  which  are  performed  by  both.  The  central 
government  and  each  of  the  governments  of  the  states 
maintains  its  own  services  for  the  collection  of  its  revenue 
and  its  disbursements.  Where  operations  are  carried  on  in 
the  same  field,  as,  for  example,  in  that  of  the  promotion 
of  education,  the  regulation  of  means  of  communication, 
the  development  of  the  natural  resources  of  the  country, 
each  acts  independently  of  the  other  and  through  its  own 
officers. 

The  most  striking  example  of  this  duplication  of  organi- 
zation is  furnished  by  the  system  of  courts  of  the  country. 
There  is  no  reason  why  the  adjudication  of  all  laws,  federal 
and  state,  should  not  be  entrusted  to  a  single  system  of 
courts.  This  system  might  be  entirely  a  federal  one  or 
one  partly  federal  and  partly  state  as  is  the  case  in  the 
German  system  of  courts.  Under  the  latter  plan  all  in- 
ferior courts,  or  those  whose  territorial  jurisdiction  did  not 


220      THE  GOVERNMENT  OF  MODERN  STATES 

extend  beyond  the  boundaries  of  a  single  state,  would  be 
state  courts  and  all  superior  courts,  or  those  whose  ter- 
ritorial jurisdiction  extended  over  the  territory  of  more  than 
one  state,  would  be  federal  courts.  Instead  of  any  such 
arrangement,  the  two  governments  maintain  absolutely  in- 
dependent judicial  establishments,  each  with  its  own  judges, 
marshals  or  sheriffs,  clerks,  deputies,  etc. 

It  is  hardly  necessary  to  point  out  that  this  policy  of  main- 
taining completely  independent  services  for  all  purposes 
leads  to  a  great  duplication  of  plant  and  organization.  Two 
offices  are  maintained  at  many  points  where  one  would 
suffice.  That  it  is  quite  feasible  for  the  same  officer  to  serve 
in  more  than  one  capacity  is  amply  demonstrated  by  the 
fact  that  it  is  a  common  practice  for  the  states  to  make  a 
large  use  of  local  officials  in  the  collection  of  their  revenues 
and  in  the  performance  of  other  duties. 

Were  the  fields  of  activities  of  the  central  government 
and  the  states  distinct,  this  duplication  of  organization  would 
not  be  such  an  important  matter.  Such,  however,  is  not 
the  case.  We  need  only  cite  such  matters  as  the  regulation 
of  rates  and  conditions  of  service  of  railway  and  other 
transportation  corporations;  the  enforcement  of  pure  food 
and  genuine  label  laws;  the  promotion  of  education;  the 
investigation  of  the  natural  resources  of  the  country  through 
geological  and  other  surveys;  the  fostering  of  agriculture 
through  research  and  experiment  stations ;  the  regulation  of 
banking,  insurance,  etc.,  to  show  to  how  large  an  extent 
the  two  governments  are  working  in  the  same  fields. 

What  makes  the  matter  all  the  more  serious  is  the  fact 
that  no  effective  means  exist  through  which  like  services 
of  the  two  governments  may  be  brought  to  work  in  co- 
operation or  even  harmony  with  each  other.  The  best  that 
can  be  done  is  for  officials  working  in  the  same  field  to  form 


DISTRIBUTION  TERRITORIALLY  221 

purely  voluntary  associations  in  which  their  common  prob- 
lems will  be  discussed  and  as  far  as  possible  agreement 
reached  to  adopt  the  same  lines  of  action  or  methods  of 
procedure.  Of  this  character  are  the  national  associations 
of  railway  commissioners,  banking  and  insurance  commis- 
sioners, factory  and  mine  inspectors,  chiefs  of  bureaus  of 
labor  statistics  and  the  like.  In  a  few  cases  important  work 
has  been  accomplished  by  these  organizations  but  as  a 
whole  the  results  are  relatively  unimportant.  Much,  for  a 
time,  was  hoped  of  the  Annual  Conferences  of  Governors 
of  the  States.  The  results  of  these  meetings,  however, 
have  been  exceedingly  meager. 

In  large  degree  the  duplication  of  organization,  plant  and 
work  is,  as  we  have  previously  pointed  out,  a  consequence 
of  the  adoption  of  the  federal  type  of  government.  There 
is,  however,  no  necessity  that  it  should  be  carried  to  the 
extreme  extent  that  it  has  in  the  governmental  system  of 
the  United  States. 

Relations  of  the  States  Among  Themselves. —  The 
government  of  each  state  is  thus  not  only  almost  completely 
independent  of  the  central  government  but  of  that  of  any 
of  its  sister  states.  No  provision  is  made  for  their  acting 
jointly  in  respect  to  matters  of  common  interest.  On  the 
contrary  they  are  expressly  prohibited  from  entering  into 
any  agreement  with  each  other  except  with  the  approval  of 
Congress  (Art.  I,  Sec.  10,  p.  3).  Provision  is  made,  how- 
ever, that  the  states  shall  act  in  harmony  in  respect  to  the 
recognition  of  the  acts  of  other  states,  in  the  surrender  of 
criminals  fleeing  from  other  states,  etc.  The  provisions 
of  the  constitution  governing  these  matters  are  as  follows: 

Full  faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records  and  judicial  proceedings  of  any  other  state.  And  the 
Congress  may  by  general  laws  prescribe  the  manner  in  which  such 


222      THE  GOVERNMENT  OF  MODERN  STATES 

acts,  records  and  proceedings  shall  be  proved  and  the  effect  thereof. 

The  citizens  of  each  state  shall  be  entitled  to  the  privileges  and 
immunities  of  citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony,  or  other 
crimes  who  shall  flee  from  justice  and  be  found  in  another  state, 
shall,  on  the  demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up  to  be  removed  to  the  state  having 
jurisdiction  of  the  crime.  (Art.  IV,  Sec.  i,  2  and  3.) 

The  Division  of  the  Territory  of  a  State  into  Major 
Political  Divisions. —  Another  problem  that  is  presented  in 
making  a  territorial  distribution  of  the  powers  of  govern- 
ment consists  in  the  determination  of  the  number  and 
boundaries  of  the  major  political  subdivisions  for  which 
provision  will  be  made.  The  disadvantages  inherent  in  a 
Multiple  Government  would  be  greatly  minimized  if  this 
determination  were  had  strictly  in  accordance  with  govern- 
mental needs.  Unfortunately  this  consideration  is  rarely 
made  the  determining  factor.  Only  in  exceptional  cases  is 
the  primary  division  of  a  country  into  grand  political  di- 
visions a  matter  of  deliberate  action.  In  almost  all  cases 
this  division  has  been  the  result  of  historical  accident.  In 
many  cases  these  subdivisions  were  originally  independent 
kingdoms  or  commonwealths.  This  is  true  of  the  con- 
stituent states  of  the  German  Empire,  the  provinces  of  Spain, 
the  original  thirteen  states  of  the  American  Republic,  the 
four  grand  divisions  of  Great  Britain  —  England,  Wales, 
Scotland  and  Ireland  —  and  indeed  of  many  of  their  sub- 
divisions now  known  as  counties,  and  most  if  not  all  of  the 
cantons  of  Switzerland.  France  is  almost  the  only  State 
of  first  rank  where  the  attempt  has  been  made  to  effect  the 
primary  subdivision  of  the  territory  by  deliberate  act, 
though  this  of  course  is  the  means  through  which  all  but 
the  original  states  of  the  American  Union  have  been 
brought  into  existence.  This  fact  is  one  of  great  im- 


DISTRIBUTION  TERRITORIALLY  223 

portance  and  profoundly  affects  the  problems  of  dividing 
the  territory  of  modern  States  for  governmental  purposes. 
It  means  that  this  division  has  not  been  made,  nor  is  it  likely 
in  the  immediate  future  to  be  made,  in  response  to  the  real 
political  needs  of  the  country.  The  controlling  factor  has 
been  and,  for  a  long  time  will  undoubtedly  continue  to  be, 
sentiment,  regard  for  historical  traditions,  rather  than  actual 
expediency. 

Division  of  the  United  States  into  States. —  It  might 
seem  that  the  United  States,  with  its  relatively  short  na- 
tional existence,  and  composed  as  it  is  of  commonwealths 
for  the  most  part  having  few  or  no  historical  traditions 
as  independent  States  would  be  comparatively  free  from 
the  influence  of  historical  sentiment.  Such,  however,  is  not 
the  case.  Where  such  sentiment  has  been  absent,  it  has 
been  deliberately  created.  It  is  thus  as  true  of  the  United 
States  as  of  any  other  country  in  the  world  that  the  di- 
vision of  the  country  into  major  political  divisions  has  not 
been  made  in  accordance  with  the  real  governmental  needs 
of  the  country. 

This  cannot  but  be  counted  as  a  defect  in  our  political  sys-  ' 
tem.  Hopeless  as  may  be  the  chances  of  correcting  this  de- 
fect at  an  early  date,  it  is  none  the  less  remarkable  that  it  has 
not  received  more  attention.  It  must  be  apparent  that  the 
division  of  the  country  into  states  is  a  purely  arbitrary  one. 
What  is  the  difference,  for  example,  in  the  interests  of 
North  and  South  Carolina,  of  North  and  South  Dakota,  or 
for  that  matter  between  many  other  adjacent  states,  that 
calls  for  their  separation  and  the  consequent  existence  of 
two  completely  separate  organizations  for  the  management 
of  their  governmental  affairs?  The  further  fact  that  the 
constituent  states  vary  so  greatly  in  their  areas  and  popu- 
lations has  made  the  federal  system  more  difficult  of  opera- 


224      THE  GOVERNMENT  OF  MODERN  STATES 

tion,  and  has  been  productive  of  no  compensating  advan- 
tages. 

It  is  of  interest  to  consider  the  manner  in  which  we  should 
proceed  to  effect  the  primary  political  subdivision  of  our 
country  and  the  character  of  the  system  that  would  result 
were  we  to  proceed  upon  the  basis  of  devising  a  system 
that  would  correspond  to  our  governmental  needs.  Our 
method  of  procedure  would  evidently  be  that  of  determin- 
ing, by  a  study  of  conditions,  the  extent  to,  and  manner 
in,  which  the  country  is  actually  divided  into  areas  having 
a  special  character  and  consequently  special  governmental 
interests.  Should  we  do  this  we  would  find  that  the  United 
States  embraces  not  to  exceed  ten  or  fifteen  areas  having 
characters  and  interests  sufficiently  diverse  to  warrant  their 
being  created  into  political  divisions  having  the  status  of 
our  constituent  states.  There  would  of  course  be  room  for 
considerable  differences  of  opinion  regarding  the  precise 
number  and  boundaries  of  these  areas.  In  general,  how- 
ever, they  would  correspond  to  the  divisions  of  the  country 
into  sections  that  have  been  made  by  the  Federal  Census 
Bureau  in  order  that  an  effective  presentation  might  be  made 
of  its  statistics  of  population,  agriculture,  manufactures, 
etc.  But  a  slight  familiarity  with  conditions  in  the  United 
States  is  required  to  show  how  closely  this  division  cor- 
responds to  actual  conditions  and  needs.  A  properly  de- 
vised system  of  primary  political  divisions  should  as  far  as 
possible  meet  two  requirements.  The  districts  provided  for 
should  be  sufficiently  unlike  as  regards  the  character  of  their 
conditions  and  problems  to  warrant  their  creation  into  areas 
having  independent  political  authority  and  organization,  and 
individually  should  be  sufficiently  homogeneous  to  make  rea- 
sonably certain  that  the  predominant  interests  of  their  in- 
habitants will  be  the  same.  The  division  of  the  territory 


DISTRIBUTION  TERRITORIALLY  225 

of  the  United  States  made  by  the  Census  Bureau  meets  both 
of  these  requirements.  In  the  New  England  Division  we 
have  a  section  of  the  country  that  is  densely  populated,  in- 
cludes a  large  number  of  cities  of  the  first  and  second  rank, 
most  of  which  are  important  sea  ports,  and  is  largely  given 
over  to  manufacturing,  commercial  and  transportation  op- 
erations. Its  governmental  problems  are  those  attaching  to 
a  thickly  settled,  predominantly  urban  and  intensely  manu- 
facturing and  commercial  community,  and  are  manifestly 
largely  identical  for  all  of  the  states  included  within  it. 
In  the  South  Eastern  and  South  Central  Divisions  we  have 
sections  which  are,  comparatively  speaking,  thinly  popu- 
lated, are  not  only  largely  given  over  to  agriculture  but 
agriculture  of  a  quite  special  character.  In  these  divisions, 
moreover,  are  included  the  great  bulk  of  the  negro  popula- 
tion of  the  country.  To  a  very  considerable  extent,  there- 
fore, these  divisions  not  only  have  interests  dissimilar  from 
those  of  other  sections,  but  ones  which  are  fairly  uniform 
throughout  these  respective  areas.  In  the  Central  Divisions, 
embracing  the  great  Mississippi  Basin,  we  have  regions  of 
a  mixed  agricultural  and  manufacturing  character  but  with 
the  former  predominating.  In  the  Mountain  Districts  the 
predominant  interests  are  those  of  mining  and  cattle  raising. 
All  the  states  included  are  relatively  thinly  populated,  and 
include  few  cities  of  first  rank.  They  are  alike  also  in 
having  an  inadequate  rainfall,  with  the  result  that  recourse 
has  to  be  had  to  irrigation  if  sufficient  water  is  to  be  se- 
cured for  the  prosecution  of  agriculture.  Its  governmental 
problems  largely  have  to  do  with  the  regulation  of  mining, 
the  taking  up  and  settlement  of  land  and  the  promotion  and 
control  of  irrigation  projects.  The  Pacific  District  is  one 
corresponding  in  general  to  that  of  the  North  Eastern  Dis- 
tricts but  has  its  special  problems  arising  from  its  geo- 


/  226      THE  GOVERNMENT  OF  MODERN  STATES 

graphic  situation,  the  inclusion  within  its  population  of 
large  numbers  of  the  yellow  races  and  the  newness  of  its 
development. 

It  cannot  but  be  apparent  that,  judged  solely  from  the 
standpoint  of  governmental  needs,  a  division  of  the  country 
into  a  few  grand  divisions  such  as  these  would  furnish  a 
scheme  of  primary  political  divisions  far  superior  to  that  of 
the  one  we  now  have.  In  each  such  grand  division  we 
would  have  instead  of  six,  eight,  or  ten  separate  govern- 
mental organizations  attempting  independently  to  solve 
problems  in  respect  to  which  the  interest  of  all  are  largely 
identical,  a  single  strong  organization.  In  place  of  six, 
eight  or  ten,  railway  commissions,  banking  commissions, 
insurance  commissions,  etc.,  we  would  have  a  single  rail- 
way, banking  or  insurance  commission.  Not  only  would 
the  cost  of  maintaining  these  services  be  thereby  greatly 
diminished  but  the  industries  regulated  would  be  relieved 
from  the  great  burdens  to  which  they  are  now  subjected  by 
having  to  meet  the  requirement  of  a  number  of  independent 
authorities. 


y 


CHAPTER  XI 

THE  DISTRIBUTION  OF  GOVERNMENTAL  POWERS 
FUNCTIONALLY 

The  spliting  up  of  the  territory  of  a  State  into  political 
divisions  and  the  distribution  of  governmental  powers 
among  such  divisions  constitutes  but  one  method  by  which 
provision  may  be  made  for  the  effective  exercise  of  these 
powers.  The  work  that  has  to  be  done  by  a  government  is 
so  complex  that  it  is  imperative  that  special  organs  shall 
be  established  for  the  performance  of  the  several  kinds  of 
work  to  be  done.  This  is  necessary,  not  only  that  the  bene- 
fits of  specialization  may  be  secured,  but  that  responsibility 
may  be  more  definitely  located.  It  follows,  therefore,  that 
all  governments  must  seek  to  determine  the  classes  into 
which  governmental  powers  fall,  viewed  from  the  stand- 
point of  their  character,  and  the  provision  that  shall  be 
made  for  the  exercise  of  each. 

Analysis  of  the  Problem.— An  analysis  of  this,  problem 
shows  that  it,  like  that  of  the  distribution  of  governmental 
powers  territorially,  involves  a  number  of  distinct  factors. 
The  more  important  of  these  are:  (i)  the  manner  in  which 
governmental  powers  shall  be  classified  for  purposes  of  dis- 
tribution; (2)  the  extent  to  which  each  class  of  work  or 
function  so  distinguished  shall  be  assigned  to  a  separate 
organ  or  branch;  (3)  the  relations  that  shall  be  established 
among  these  several  branches;  and  (4)  the  authority 
which  this  classification  and  distribution  of  governmen 
functions  shall  be  effected. 

227 


228      THE  GOVERNMENT  OF  MODERN  STATES 

The  Classification  of  Governmental  Powers. —  In  seek- 
ing to  classify  any  body  of  data  the  first  essential  is  the 
adoption  of  the  principle  or  basis  upon  which  such  classifi- 
cation shall  be  made.  In  making  a  selection  of  a  principle 
it  is  furthermore  desirable  that  the  choice  should  fall  upon 
some  characteristic  which  is  at  once  fundamental  rather  than 
incidental,  and  will  serve  to  bring  out  distinctions  which  will 
best  serve  the  objects  in  view.  In  the  present  case  no  doubt 
exists  regarding  the  principle  that  should  be  employed.  A 
distinguishing  feature  of  the  modern  government  in  its  prac- 
tical operations  is  that  it  is  one  of  law.  Every  feature  of 
its  organization  is  a  matter  of  legal  determination,  and  every 
one  of  its  acts,  in  order  to  possess  validity,  must  rest  upon 
a  legal  sanction^  The  practical  problem  of  organizing  and 
conducting  a  government  is  thus  one  of  legal  action.  It 
resolves  itself  into  the  problem  of  determining  how  the  law 
of  the  land,  and  particularly  that  part  having  to  do  with 
the  operations  of  government,  shall  be  declared,  how  dif- 
ferences of  opinion  regarding  its  meaning  or  applicability 
to  particular  cases  shall  be  decided,  and  how  the  law  as  thus 
declared  and  interpreted  shall  be  put  into  effect.  The  prin- 
ciple upon  which  governmental  powers  should  be  classified 
functionally  is  thus  universally  recognized  as  that  of  the 
nature  of  the  power  exercised  as  determined  by  its  relation 
to  law. 

The  Traditional  Threefold  Classification  of  Govern- 
mental Powers  into  Legislative,  Judicial  and  Executive. 
-  Based  upon  this  principle  of  classification,  all  the  powers 
of  government  have  long  been  conceived  as  falling  within 
one  or  the  other  of  three  great  classes,  according  as  they 
have  to  do  with :  ( I )  the  determination  or  enactment  of 
law;  (2)  the  interpretation  of  this  law;  and  (3)  its  en- 
forcement. To  these  three  classes  have  been  given  the 


DISTRIBUTION  FUNCTIONALLY 


names,  legislative,  judicial,  and  executive.  Structurally 
considered,  government  has  thus  been  deemed  to  be  made 
up  of  three  great  branches  having  for  their  functions  the 
enactment,  the  adjudication  and  the  enforcement  of  law. 

A  More  Satisfactory  Classification  that  of  a  Fivefold 
Division  of  Powers  into:  Electoral,  Legislative,  Judi- 
cial, Executive  and  Administrative. —  Notwithstanding 
the  fact  that  this  threefold  division  of  governmental  powers 
has  received  such  general  recognition  as  to  give  it  the 
designation  of  the  classical  division  of  governmental  pow- 
ers, examination  will  show  that  it  cannot  stand  the  test  of 
scientific  analysis,  and,  furthermore,  that  attempts  to  act 
upon  it  not  only  lead  to  confusion  of  thought,  but  to  serious 
difficulties  in  working  out  the  practical  problems  of  the  dis- 
tribution of  governmental  powers  functionally.  The  defect 
in  this  system  of  classification  lies  in  the  fact  that  it  fails 
to  distinguish  and  make  separate  provision  for  the  func- 
tions of  electoral  action  and  administration.  In  the  pages 
that  follow  it  will. be  seen  how  distinct  these  functions  are 
from  the  other  functions  comprehended  within  the  threefold 
classification  and  how  important  it  is  that  their  distinct 
character  should  be  recognized  in  the  practical  work  of  or- 
ganizing and  operating  a  government. 

The  Electorate  as  a  Distinct  Branch  of  Government. 
-At  the  time  that  the  threefold  classification  of  govern- 
mental powers  into  legislative,  judicial  and  executive  es- 
tablished itself  the  leading  nations  of  the  world  were  Mon- 
archies. Electorates,  in  the  modern  sense,  were  either  non- 
existent, or  played  such  a  minor  role  in  the  determination 
of  how  the  actual  affairs  of  government  should  be  conducted, 
that  students  of  politics  were  justified  in  ignoring  them. 
With  the  rise  of  Popular  Government  the  whole  problem 
of  government  has  undergone  a  radical  transformation. 


230      THE  GOVERNMENT  OF  MODERN  STATES 

The  source  of  authority  has  been  transferred  from  the  ruler 
to  the  people.  The  latter  have  been  compelled  to  organize 
themselves  for  the  exercise  of  this  authority.  They  have 
done  so  by  making  a  selection  of  those  of  its  members  who 
shall  act  for  them.  These  members  constitute  what  is 
known  as  the  Electorate,  that  is,  the  body  of  citizens  exer- 
cising voting  or  electoral  powers. 

This  body  it  need  hardly  be  pointed  out  constitutes,  not 
only  a  distinct  branch  of  the  political  system  of  a  country, 
but  has  clearly  distinguishable  and  definite  functions.  Its 
existence  gives  rise  to  many  distinct  problems :  how  it  shall 
be  constituted,  what  shall  be  its  powers  and  duties,  what 
its  methods  of  procedure,  what  its  relations  to  the  other 
branches  of  government,  etc.  The  issue  between  Democ- 
facy  and  Representative  Government  is  distinctly  a  prob- 
lem of  this  branch.  It  follows,  therefore,  that  the  exist- 
ence of  this  branch  as  a  distinct  brandi  of  government 
should  be  recognized  and  the  problems  connected  with  it  be 
given  independent  consideration.  , 

In  doing  this  two  positions  may  be  taken.  The  electorate 
may  be  looked  upon  as  an  integral  part  of  the  machinery 
of  government  or  as  standing  outside  of  the  government, 
strictly  speaking.  In  a  government  of  a  purely  representa- 
tive character  there  is  some  advantage  in  taking  the  latter 
position.  When,  however,  the  electorate,  as  in  the  United 
States,  seeks  to  take  to  itself  the  performance  of  certain 
purely  governmental  functions,  such  as  the  formulation  of 
governmental  policies  and  programs  and  participation  in 
the  actual  work  of  legislation  through  the  devices  of  the 
"  Initiative  "  and  the  "  Referendum,"  it  is  probably  better 
to  consider  it  as  a  branch  of  the  government  proper.  In 
practice  the  choice  between  these  two  positions  is  of  rela- 
tively little  importance.  The  important  thing  is  to  recog- 


DISTRIBUTION  FUNCTIONALLY  231 

nize  that,  in  the  electorate,  we  have  to  deal  with  a  distinct 
branch  of  the  political  systems  of  modern  States,  and  one 
which  gives  rise  to  problems  as  difficult  of  solution  as  those 
presented  by  any  other  branch. 

Administration  as  a  District  Branch  of  Government. 
-  In  the  threefold  classification  of  governmental  powers 
no  recognition  is  given  to  Administration  as  a  separate 
function  or  branch  of  government.  In  so  far  as  any  ac- 
count at  all  is  taken  of  this  function  in  that  classification, 
it  is  confused  with,  and  treated  as  a  part  of,  the  executive 
function.  To  so  great  an  extent  is  this  true  that  the  two 
terms  "  executive  "  and  "  administrative  "  are  used  almost 
interchangeably.  This  is  exceedingly  unfortunate  since,  as 
we  shall  see,  the  two  terms  should  be  employed  as  connoting 
operations  which  are  distinct  in  character. 

To  understand  the  difference  between  the  two,  when 
properly  employed,  it  is  necessary  to  distinguish  between  t\vo 
things.  The  first  of  these  is  the  difference  between  the  func- 
tion of  seeing  that  laws  are  enforced  and  that  of  actually  do- 
ing the  things  whichjhe  laws  call  for.  This  distinction  is 
specially  apparent  where  the  actual  exercisejof^auihority  is 
distributed  among  a  number  of  organs  or  parts.  Where  this 
is  the  case  it  is  evident  that  there  must  be  some  authority 
whose  special  function  it  is  to  see  that  the  laws  governing  this 
distribution,  determining  the  special  duties  of  the  several 
parts  and  regulating  the  relations  of  the  latter  with  each 
other  are  in  fact  complied  with.  Without  some  such  au- 
thority the  several  parts  cannot  be  correlated  into  a  single 
harmonious  system  and  made  to  work  in  proper  coopera- 
tion with  each  other  for  the  attainment  of  a  common  end. 

The  second  distinction  is  that  between  the  act  of  an  or- 
ganization as  a  whole,  and  that  of  one  of  its  parts.  There 
are  many  cases  where  governmental  action  should  represent 


232      THE  GOVERNMENT  OF  MODERN  STATES 

the  action  of  the  government  as  a  unit.  This  applies  espe- 
cially to  the  whole  field  of  international  relations  in  which 
is  involved  the  intercourse  of  sovereign  States  with  each 
other.  This  makes  it  imperative  that  there  shall  be  some 
organ  or  authority  whose  special  function  it  is  to  represent 
the  government  in  this  capacity. 

With  these  distinctions  and  requirements  in  mind,  the 
essential  difference  that  exists  between  the  executive  and  the 
administrative  function,  using  these  terms  in  their  proper 
technical  sense,  can  be  seen.  The  executive  function  is  the 
function  of  representing  the  government  as  a  whole,  and  of 
seeing  that  all  of  its  laws  are  complied  with  by  its  several 
parts.  The  administrative  function  is  the  function  of  ac- 
tually administering  the  law  as  declared  by  the  legislative 
and  interpreted  by  the  judicial  branches  of  the  government. 
This  distinction  is  usually  made  by  declaring  the  executive 
function  to  be  essentially  political  in  character;  that  is,  one 
having  to  do  with  the  determination  of  general  policies,  and 
involving  the  exercise  of  judgment  in  its  use;  and  the  ad- 
ministrative function  to  be  one  concerned  with  the  putting 
into  effect  of  policies  as  determined  by  other  organs.  Thus 
Aucoc,  the  eminent  French  authority  on  public  law,  differ- 
entiates the  two  as  follows :  * 

When  we  distinguish  government  (i.  e.,  .executive  direction) 
from  administration,  we  mean  to  put  in  a  special  category  the  di- 
rection of  all  affairs  which  are  regarded  as  political ;  that  is  to  say, 
the  relation  of  the  chief  executive  authority  with  the  great  powers 
of  government,  the  summoning  of  electors  for  the  election  of  sena- 
tors and  representatives,  the  closing  of  the  session,  the  convening 
of  the  chamber  of  deputies  and  of  the  senate,  the  closing  of  the 
senate,  the  dissolution  of  the  chamber  of  deputies,  the  carrying 

1 "  Conferences  sur  L'administration,"  etc.  Quoted  by  Goodnow, — 
"  Principles  of  Administrative  Law  of  the  United  States." 


DISTRIBUTION  FUNCTIONALLY  233 

on  of  diplomatic  relations  with  foreign  powers,  the  disposition  of 
the  military  forces,  the  exercise  of  the  right  of  pardon,  the  grant- 
ing of  the  titles  of  nobility. 

The  Question  of  the  Union  or  Separation  of  Powers. 

—  Too  great  importance  cannot  be  attached  to  the  forego- 
ing analysis  of  the  powers  of  government.  The  fact  that 
all  the  work  involved  in  the  conduct  of  a  government  falls 
into  these  five  clearly  distinguishable  categories  determines 
the  whole  nature  of  the  problem  of  devising  an  organization 
through  which  they  may  be  exercised.  From  the  structural 
side  the  work  of  organizing  a  government  resolves  itself 
into  that  of  determining  the  provision  that  shall  be  made  for 
the  exercise  of  each  of  these  powers. 

In  our  examination  of  the'  problem  of  the  territorial  dis- 
tribution of  powers  we  have  seen  how  the  constituent  au- 
thority is  called  upon  to  make  the  vital  decision  as  to  whether 
it  will  confer  all  the  powers  of  government  upon  a  single 
government,  leaving  to  that  government  the  duty  of  dis- 
tributing the  actual  exercise  of  these  powers  between  itself 
and  subordinate  political  divisions;  or  will  itself  make  such 
a  distribution;  an.d  that  according  as  it  decides  one  way  or 
the  other,  it  brings  into  existence. a  Unitary  or  a  Multiple 
Government.  Precisely  an  analogous  decision  has  to  be 
made  by  it  regarding  the  question  of  the  provision  that 
shall  ,be  made  for  the  exercise  of  the  five  great  classes  of 
governmental  powers.  It  must  decide  whether  it  will  vest 
full  authority  in  respect  to  the  exercise  of  all  of  the  powers 
that  are  conferred  upon  the  government  proper  in  a  single 
organ,  leaving  to  that  organ  the  duty  of  making  such  a 
distribution  of  these  powers  to  special  organs  to  be  created 
by  it  as  it  deems  proper,  or  whether  it  will  itself  make  this 
distribution.  If  it  decides  to  do  the  first,  it  brings  into 


234      THE  GOVERNMENT  OF  MODERN  STATES 

existence  a  government  known  as  a  Government  of  Union 
of  Powers;  if  the  second,  a  Government  of  Separation  of 
Powers. 

Of  governments  of  the  first  class  that  of  Great  Britain 
offers  the  best,  if  not  the  only,  example  where  this  principle 
of  concentrating  all  authority  in  the  first  instance  in  a  single 
organ  of  government  has  been  carried  out  without  any 
qualification  or  exceptions.  In  this  government  all  govern- 
mental authority  rests  primarily  in  Parliament.  All  the 
other  organs  of  government  are  created,  and  their  jurisdic- 
tions, powers,  and  procedures'  determined  by  it.  To  this 
class  of  governments  also  belong  of  course  those  where 
all  authority  is  vested  in  the  hands  of  a  single  autocratic 
ruler.  The  government  that  is  established  by  a  military 
commander  for  the  civil  government  of  territory  occupied 
by  him  is  also  of  this  character. 

The  governments  of  most  other  modern  states  belong  to 
the  second  class.  Great  differences,  however,  exist  between 
these  governments  in  respect  to  the  extent  to  which  the  at- 
tempt has  been  made  by  the  constituent  authority  to  provide 
for  the  exercise  of  the  several  powers  by  coordinate  organs 
or  departments  of  government.  Among  these  governments 
that  of  the  United  States  represents  the  attempt  to  carry 
the  principle  of  separation  of  powers  to  its  greatest  possible 
extent.  As  regards  this  fundamental  feature  of  govern- 
ment we  thus  find  Great  Britain  and  the  United  States 
standing  at  opposite  extremes.  It  is  in  the  comparison  of 
these  two  governments  that  one  can  thus  best  see  the  re- 
sults following  from  the  adoption  of  one  or  the  other  of 
the  two  policies  in  respect  to  the  union  or  separation  of 
powers. 

There  are  few  topics  in  political  science  about  which 
more  has  been  written  than  that  of  the  separation  of  pqwers 


DISTRIBUTION  FUNCTIONALLY  235 

which  we  now  have  under  consideration.  Notwithstanding 
this  there  are  few  subjects  regarding  which  greater  miscon- 
ception exists.  The  reason  for  this  is  that  there  is  a  gen- 
eral failure  to  distinguish  between  certain  important  ques- 
tions that  are  involved  in  it.  The  fact  of  the  matter  is  that 
the  subject  is  an  exceedingly  difficult  one  and  only  by  the 
most  painstaking  study  can  one  hope  to  understand  it  in 
all  of  its  phases. 

Status  of  Organs  Exercising  the  Several  Powers  in 
the  Two  Types  of  Government  —  Those  of  Union  of 
Powers  and  Separation  of  Powers. —  In  seeking  to  make 
a  study  of  this  character,  the  first  point  to  be  noted  is  that, 
as  in  the  case  of  the  distribution  of  powers  territorially,  the 
issue  is,  not  as  to  whether  special  organs  shall  be  provided 
for  the  exercise  of  the  several  powers  of  government,  for 
such  organs  are  found  in  all  modern  governments,  but  as 
to  the  authority  by  which  such  organs  shall  be  established, 
their  powers  defined  and  their  relations  to  each  other  de- 
termined. In  a  Government  of  Union  of  Powers  the  au- 
thority doing  this  is  the  organ  of  government  to  which  all 
the  powers  of  government  have  in  the  first  instance  been 
given  by  the  constituent  authority.  In  a  Government  of 
Separation  of  Powers  this  is  the  constituent  authority  itself. 
Herein  lies  the  distinction  between  these  two  types  of  gov- 
ernment. From  the  structural  side  there  is  little  or  no  dif- 
ference since  in  both  governments  separate  organs  "have  been 
provided  for  the  exercise  of  the  several  powers.  The  only 
difference  between  them  is  in  respect  to  the  constitutional 
or  legal  status  of  these  organs.  In  a  Government  of  a 
Union  of  Powers  one  organ,  which,  in  practice,  is  the  legis- 
lative branch  of  the  government,  is  supreme;  the  other 
organs  are  but  its  agents,  the  means  through  which  it  exer- 
cises those  of  its  powers  which  it  does  not  desire  itself 


236      THE  GOVERNMENT  OF  MODERN  STATES 

directly  to  exercise.  In  a  Government  of  Separation  of 
.Powers  the  several  organs  or  branches  of  government,  in 
so  far  as  they  have  been  established  and  their  powers  defined 
by  the  constituent  authority,  are  coordinate  in  rank :  the  line 
of  authority  in  each  case  runs  directly  to  a  common  author- 
ity, the  constituent  authority. 

Distinction  Between  a  Personal  and  an  Organic 
Union  or  Separation  of  Powers. —  The  foregoing  distinc- 
tion is  one  which,  though  not  often  explicitly  stated  in  dis- 
cussions regarding  the  union  or  separation  of  powers,  is 
nevertheless  one  generally  understood  by  students  of  po- 
litical science.  We  come  now,  however,  to  a  distinction 
which,  though  it  goes  to  the  very  heart  of  the  whole  ques- 
tion, is  yet  one  which  has  received  little  or  no  attention. 
The  failure  to  make  this  distinction,  and  to  appreciate  the 
consequences  flowing  from  it,  more  than  anything  else  is 
responsible  for  the  vast  amount  of  misconception  that  exists 
in  respect  to  the  relative  merits  and  consequences  of  the  two 
systems. 

This  distinction  is  that  between  the  separation  of  powers 
which  is  secured  when  the  exercise  of  the  several  powers  is 
vested  in  distinct  organs,  veach  of  which  is  manned  by  a  dis- 
tinct set  of  offidalSjjjand  that  resulting  where  use  is  made 
of  separate  orgaas^Jbut  these  organs  are,  in  part  at  least, 
in  charge  of  the  same  persons.  This  distinction,  it  is  evi- 
dent, is  the  same  which  exists  between  the  two  cases  where 
two  industrial  undertakings  are  carried  on  by  separate  cor- 
porations, no  officer  of  whkh_js_ajnjpfficer  of  both  corpora- 
tions, and  where  use  is.  made,  of  two  distinct  corporations, 
the  officers  of  which  are  composed  in  whole  or  in  part  of 
the  same  persons.  In  both  cases  the  separation  is  organic. 
Only  in  the  first  case,  however,  is  it  a  personal  one.  We 
can  distinguish  between  the  two,  therefore,  by  designating 


DISTRIBUTION  FUNCTIONALLY  237 

the  first  as  a  personal  and  the  latter  as  an  organic  separa- 
tion of  powers. 

The  English  Government  One  of  Separation  of  Pow- 
ers Organically  and  Union  of  Powers  Personally. —  The 
importance  of  this  distinction  can  be  seen  when  we  attempt 
to  compare  the  governments  of  Great  Britain  and  the 
United  States  from  this  standpoint.  The  former  govern- 
ment is  usually  regarded  as  the  most  striking  example  of 
a  government  of  united  powers,  the  latter  as  an  equally 
prominent  example  of  one  with  a  separation  of  powers. 
The  undoubtedly  greater  smoothness  and  efficiency  with 
which  the  former  government  works,  in  comparison  with 
the  latter,  is  believed  to  find  its  chief  explanation  in  this 
fact  that,  in  the  former,  therejis  a  union,  and  in  the  latter, 
a  separation  of  powers. 

Witrf  the  belief  that  the  government  of  Great  Britain  does 
work  in  a  smoother  and  more  efficient  manner  than  that  of 
the  United  States,  and  that  the  reason  for  this  is  in  great 
part  found  in  the  difference  between  the  two  governments  as 
regards  this  feature  of  the  union  or  separation  of  powers, 
the  author  is  in  entire  accord.  The  explanation  of  the 
superior  results  given  by  the  former,  is,  however,  in  the 
opinion  of  the  author,  precisely  the  opposite  of  that  which 
is  usually  alleged  as  accounting  for  this  fact  The  excel- 
lence of  the  British  government,  and  the  poorness  of  the 
American  government  does  not  lie  in  the  fact  that,  in  the 
former,  there  is  a  union  and,  in  the  latter,  a  separation  of 
powers,  but  in  the  precise  reverse  of  this;  namely,  in  the 
extent  to  which  that  principle  of  vesting  the  exercise  of 
each  power  in  a  distinct  organ  is  adhered  to  in  the  former, 
and  disregarded  in  the  latter. 

A  close  study  of  the  English  government,  in  its  prac- 
tical workings,  shows  that,  organically,  the  principle  of  the 


238      THE  GOVERNMENT  OF  MODERN  STATES 

separation  of  powers  has  been  carried  out  with  a  rigidity 
that  is  found  in  few  or  no  other  governments.     After  a 
long  struggle  between  the  Parliament  and  the  Crown  the 
latter  was  shorn  of  all  of  its  legislative  powers  and  the 
exercise  of  this  power  was  vested  wholly  in  the  former. 
On  the  other  hand  Parliament,  though  victorious  in  the 
contest  with  the  Crown,  has  never  attempted  to  deprive  the 
latter  of  any  of  its  executive  powers,  nor  itself  to  participate 
in  any  way  in  the  exercise  of  that  power.     More  remarkable 
still,  Parliament  has  never  taken  to  itself  the  function  of 
administration.     This   is   strikingly  illustrated   in   its  atti- 
tude towards  the  budget,  that  is,  towards  the  determination 
of  the  manner  in  which  the  revenues  of  the  country  shall 
be  raised  and  expended.     The  formulation  of  the  annual 
budget  of  receipts  and  expenditures  is  recognized  as  essen- 
tially an  act  of  administration.     By  a  self-denying  ordi- 
nance, or  rule,  it  has  provided  that  no  measure  looking  to 
the  raising  of  revenue  or  the  expenditure  of  funds  shall 
even  be  considered  by  it,  except  such  as  are  brought  before 
it  and  recommended  by  the  ministry  of  the  day,  which,  in 
their  capacity  as  heads  of  the  administrative  departments, 
constitute  the  administrative  branch  of   the  government. 
More  than  this,  it  denies  to  itself  the  right  to  modify  the 
proposals  so  brought  before  them  in  any  respect,  except  as 
such  modification  may  meet  with  the  approval  of  the  latter. 
In  point  of  fact,  the  budget  which  constitutes  the  whole 
financial  program  of  the  government  for  the  year  is  deter- 
mined absolutely  by  the  administrative  branch  of  the  gov- 
ernment.    The  only  real  participation  in  this  act  by  Par- 
liament is  the  right  which  it  has  that  the  budget,  as  framed, 
shall  be  laid  before  it  for  its  information,  and  that  it  shall 
have  an  opportunity  to  express  its  opinion   regarding  it. 
There  is  here  no  division  of  power  or  responsibility.     Power 


DISTRIBUTION  FUNCTIONALLY  239 

in  respect  to,  and  full  responsibility  for,  the  budget  rests 
with  the  administration.1 

We  have  mentioned  specially  this  matter  of  the  enact- 
ment of  the  budget  since  it  constitutes,  not  only  the  most 
important  and  vital  of  all  administrative  acts,  but  because 
the  attitude  that  Parliament  takes  towards  it  is  typical  of 
its  attitude  towards  all  matters  of  administration.  No  ef- 
fort is  made  by  it  to  substitute  its  judgment  for  that  of 
administrative  officials  in  the  actual  administration  of  af- 
fairs. In  not  a  single  case  does  it,  for  example,  require 
that  the  appointment  of  officials,  high  or  low,  shall  come 
before  it  for  approval  or  disapproval.  Any  such  provision 
would  be  deemed  to  be  a  grave  trespass  of  the  legislative 
branch  upon  the  field  of  administration. 

In  like  manner  the  judiciary  has  been  established  as  a 
distinct  and  independent  branch  of  the  government.  This 
has  been  accomplished  by  the  enactment  of  laws  requiring 
that  all  appointments  to  high  judicial  office  shall  be  during 
good  behavior,  that  the  salaries  of  judges  shall  constitute 
a  permanent  charge  upon  the  consolidated  fund,  and  thus 
be  independent  of  any  annual  budgetary  provision,  and 
that  the  judges  themselves  shall  only  be  removed  upon  an 
address  on  the  part  of  both  houses  of  Parliament  request- 
ing that  this  be  done. 

If  we  turn  from  a  consideration  of  the  union  or  separa- 
tion of  powers  organically  to  that  of  their  union  or  separa- 
tion personally,  we  find  quite  a  different  condition  of  affairs. 
Though  distinct  organs  are  provided  for  the  exercise  of  each 
of  the  great  powers  of  government,  these  organs  are,  as 

1  For  a  full  consideration  of  this  feature  of  the  English  government, 
see:  "The  System  of  Financial  Administration  of  Great  Britain,"  by 
W.  F.  Willoughby,  W.  W.  Willoughby  and  S.  M.  Lindsay,  "  Studies  in 
Administration,  Institute  for  Government  Research,"  D.  Appleton  & 
Co.,  1917. 


240      THE  GOVERNMENT  OF  MODERN  STATES 

regards  their  superior  officers  at  least,  under  the  direction 
of  the  same  persons.  We  have  in  effect  the  same  situation 
as  that  which  exists  when  the  same  persons  are  officers  of 
distinct  corporations,  each  with  its  distinct  field  of  activities, 
but  all  having  for  their  object  the  attainment  of  a  com- 
mon end. 

This  situation  of  affairs  can  only  be  understood  by  appre- 
ciating that  the  ministry,  or  the  cabinet,  though  possessed 
of  unity  as  far  as  its  personnel  is  concerned,  acts  as  three 
distinct  organs.  In  their  capacity  as  members  of  Parlia- 
ment, the  members  of  the  ministry  act  as  a  committee  on 
rules  and  program  of  that  body.  As  heads  of  adminis- 
trative departments  they  act  as  a  central  administrative 
board.  As  the  actual  custodians  of :  the  powers  of  the 
Crown,  they  act  as  the  chief  executive  of  the  nation. 

This  distinction  between  the  three  capacities  in  which  the 
ministry  acts  is  not  a  mere  theoretical  one  for  the  purpose 
of  making  clear  the  functions  of  this  body.  It  is  one  which 
is  strictly  observed  in  practice.  In  the  ministry  we  have- 
three  distinct  organs.  When  acting  as  an  executive  organ 
it  acts  independently  of  Parliament  and  as  the  direct  repre- 
sentative of  the  Crown  of  whose  original  power  it  is  now 
the  custodian.  When  acting  as  a  legislative  organ  it  keeps 
strictly  within  the  legislative  field  and  does  not  seek  to  take 
to  itself  either  executive  or  administrative  functions. 
When  acting  as  an  administrative  board  it  does  not  seek  to 
exercise  either  executive  or  legislative  powers  but  confines 
itself  strictly  to  the  problem  of  administration. 

To  sum  up  then,  the  prime  characteristics  of  the  British 
governmental  system,  from  the  standpoint  of  the  union  or 
separation  of  powers,  lie  in  the  definite  separation  of  pow- 
ers organically,  and  their  close  union,  personally.  Each 


DISTRIBUTION  FUNCTIONALLY  241 

organ  confines  itself  to  the  work  which  belongs  to  itself. 
At  the  same  time  there  is  full  recognition  of  the  fact  that 
the  several  branches  of  government  are  but  parts  of  one 
piece  of  mechanism  and  that  as  such  their  operations  should 
be  conducted  in  accordance  with  general  policies  and  di- 
rected to  a  common  end.  This  is  secured  by  placing  the 
same  persons  in  charge  of  these  several  organs. 

It  is  in  this  harmonizing  of  these  two  apparently  conflict- 
ing considerations,  the  distinct  separation  of  powers  organ- 
ically and  their  union  personally,  that  lies  the  great  merit 
of  the  British  governmental  system.  The  bald  statement 
that  the  excellence  of  this  system  lies  in  the  union  of  powers 
is  thus,  not  only  misleading,  but  wholly  erroneous,  since  it 
implies  that  this  union  is  not  merely  a  personal  but  an  or- 
ganic one,  an  implication  which  as  we  have  seen  is  directly 
contrary  to  the  fact.  The  real  explanation  of  the  excellence 
of  the  system  lies,  as  much,  if  not  more,  in  the  separation 
i  of  powers  organically  as  it  does  in  their  union  personally. 

The  United  States  Government  One  of  Union  of  Pow- 
ers Organically  and  Separation  of  Powers  Personally. 
-  If  the  Government  of  Great  Britain  is  looked  upon  as  the 
most  prominent  example  of  one  with  a  union  of  powers, 
that  of  the  United  States  is  regarded  as  a  no  less  striking 
illustration  of  the  contrary  principle.  No  idea  is  more 
firmly  held  by  the  mass  of  the  American  people  than  that 
the  most  fundamental  principle  upon  whichMheir  govern- 
ment is  based  is  that  of  a  separation  of  powers.  It  is  in  this 
separation  of  powers  which  they  believe  to  exist  that  they 
find  the  greatest  guarantee  of  their  political  liberties  and 
safeguard  against  a  despotic  use  of  power  by  public  offi- 
cials. To  this  characteristic,  on  the  other  hand,  is  at- 
tributed many,  if  not  most,  of  the  evils  which  our  system 


242      THE  GOVERNMENT  OF  MODERN  STATES 

of  government  presents  in  actual  operation;  and  in  the  doing 
away  with  this  separation  of  powers  is  believed  to  lie  the 
only  effective  remedy  against  such  evils. 

Deep-rooted  as  are  these  opinions  regarding  our  govern- 
ment, examination  will  show  that  they  are  almost  wholly 
unfounded.  The  government  of  the  United  States,  instead 
of  being  one  of  separated  powers,  is  one  in  which  there 
exists  a  union  of  powers  both  organically  and  personally, 
to  an  extent  that  is  found  in  few,  if  any,  other  governments 
of  the  first  rank;  and  the  troubles  which  are  experienced  in 
operating  this  system,  instead  of  being  the  consequence  of 
a  separation  of  powers  are  due  to  the  precisely  opposite 
reason,  namely,  a  union  of  the  exercise  of  the  same  power 
in  two  or  more  authorities  or  organs. 

The  fact  of  the  matter  is  that  our  government  represents 
one  in  which,  neither  the  theory  of  the  union  of  powers, 
nor  that  of  a  separation  of  powers,  has  been  consistently 
carried  out.  In  framing  our  constitution  its  authors  pro- 
ceeded upon  the  theory  that  all  of  the  powers  of  govern- 
ment were  divisible  into  the  three  great  branches  of  legisla- 
tive, judicial  and  executive  and  that  separate  provision 
should  be  made  for  each.  They  failed  utterly  to  recognize 
or  to  make  any  direct  provision  for  the  exercise  of  adminis- 
trative powers.  In  Consequence  of  this  failure  our  entire 
constitutional  history  has  been  marked  by  a  struggle  be- 
tween the  legislative  and  the  executive  branches  as  to  the 
relative  parts  that  they  should  play  in  the  exercise  of  this 
power]  This  is  a  matter  to  which  we  will  give  special  at- 
tention in  another  place. 

Disregarding  this  point  for  the  present,  we  find  that  the 
framers  of  the  constitution,  in  acting  upon  this  theory  that 
the  powers  of  government  fall  into  the  three  classes  of 
legislative,  judicial  and  executive,  proceeded  to  provide  for 


DISTRIBUTION  FUNCTIONALLY  243 

three  organs,  a  Congress,  a  Judiciary  and  a  President  which 
should  constitute  the  three  branches,  or  departments,  of 
government  corresponding  to  these  three  powers.  Having 
made  provision  for  these  separate  organs  they,  however, 
refused  to  vest  in  them  the  exclusive  exercise  of  the  powers 
to  which  they  corresponded.  On  the  contrary  they  so  de- 
fined the  powers  of  each  and  so  distributed  the  exercise  of 
the  three  powers  among  them  that  no  one  can  act  independ- 
ently in  its  own  field.  In  almost  all  vital  matters  the  concur- 
rence of  one  or  more  of  the  other  two  organs  is  required. 
A  rapid  survey  of  some  of  the  more  important  provisions 
of  our  constitution  bearing  upon  the  'exercise  of  the  three 
powers  will  show  to  how  great  an  extent  this  is  true. 

Though  the  first  section  of  the  constitution  provides  that 
"  all  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States  which  shall  consist  of  a 
Senate  and  a  House  of  Representatives,"  active  participa- 
tion in  the  exercise  of  this  power  is  in  fact  conferred  upon 
the  executive  branch  by  the  requirement  that  no  bill  shall 
become  a  law  until  it  is  referred  to  the  President  for  his 
approval  and  the  power  that  is  granted  to  the  latter  to  veto 
such  bills  as  do  not  meet  with  his  approval.  It  is  true  that 
such  veto  may  be  overridden  if  a  two-thirds  majority  vote 
for  such  action  can  be  secured  in  both  houses.  This,  how- 
ever, does  not  remove  the  fact  that  the  Executive  is  given 
an  active  participation  in  the  exercise  of  the  legislative 
power  and  that  this  participation,  in  the  great  majority  of 
cases,  determines  whether  a  given  measure  shall,  or  shall  not, 
become  a  law.  In  this  connection  it  is  important  to  note 
that  this  veto  power  of  the  President,  though  negative  in 
form,  can  be  and  is  used  to  influence  legislation  in  a  positive 
way.  This  is  done  by  the  President  letting  it  be  known  that 
if  certain  provisions  are  omitted  from,  or  allowed  to  con- 


244      THE  GOVERNMENT  OF  MODERN  STATES 

tinue  in,  a  measure  it  will  receive  his  veto.  In  considering 
measures,  Congress  has  constantly  to  bear  in  mind  this 
contingency  of  a  Presidential  veto.  Through  the  possession 
of  this  power  the  President  thus  exercises  a  very  positive 
influence  in  determining  the  character  of  the  laws  that  are 
drafted  by  Congress  and  sent  to  him  for  his  approval. 

This  power  to  veto  bills  represents,  moreover,  but  one  of 
the  ways  in  which  the  President  participates  actively  in  the 
exercise  of  the  legislative  power.  The  provision  of  the 
constitution  that  the  President  "  shall  from  time  to  time  give 
to  the  Congress  information  of  the  state  of  the  Union  and 
recommend  to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient  "  has  been  interpreted  as  con- 
ferring upon  the  President  not  only  the  authority,  but  the 
obligation,  to  propose  legislation.  In  the  early  days  of  the 
Republic  it  was  believed  that  the  President  had  exhausted 
his  authority  under  this  grant  when  he  had  brought  to  the 
attention  of  Congress  action  which  in  his  opinion  should  be 
taken:  responsibility  for  taking  action  upon  these  recom- 
mendations was  deemed  to  rest  wholly  with  Congress. 
Within  recent  years,  however,  a  radical  change  of  attitude 
towards  this  function  has  taken  place.  The  people  now 
look  to  the  President,  not  only  to  formulate  a  definite  legis- 
lative program  but  to  exert  all  his  influence  and  power  to 
secure  favorable  action  upon  it.  A  few  years  ago  Con- 
gress would  have  resented  the  attempt  on  the  part  of  a 
President  to  embody  his  proposals  in  the  form  of  definite 
drafts  of  bills  as  an  infringement  of  its  function.  Now 
the  President  boldly  puts  his  proposals  in  this  form,  declares 
them  to  be  administrative  measures,  and  takes  the  position 
that  support  of  them  is  a  test  of  party  fealty. 

The  President  moreover  does  not  stop  with  this  formula- 
tion of  a  legislative  program.  He  thereafter  exerts  himself 


DISTRIBUTION  FUNCTIONALLY  245 

to  the  utmost  to  secure  favorable  action  upon  his  proposals. 
He  is  in  constant  consultation  with  the  leaders  of  his  party 
in  Congress.  By  personal  interview  and  other  means  he 
seeks  to  overcome  the  opposition  of  members  not  favorably 
disposed.  If  need  be  he  uses  the  great  powers  which  he 
possesses  to  bring  pressure  to  bear  upon  individual  mem- 
bers to  support  his  measures.  Patronage  can  be  liberally 
bestowed  or  wholly  withdrawn,  special  action  desired  by 
members  can  be  supported  or  opposed.  In  extreme  cases 
the  fight  can  be  carried  into  a  member's  district  and  his 
renomination  or  reelection  to  office  can  be  supported  or  an- 
tagonized according  to  the  position  taken  by  him  in  relation 
to  administrative  measures.  The  extent  to  which  such  a 
use  of  power  by  a  President  to  coerce  a  member  of  Con- 
gress in  the  exercise  of  his  function  as  a  legislator  is  legit- 
imate raises  a  very  important  question  which  will  be  else- 
where considered.  Here  it  is  only  desired  to  bring  out  the 
extent  to  which  the  President  both  has  and  uses  the  power 
to  influence  legislation  and  thus  to  make  of  himself  one  of 
the  distinct  organs  through  which  the  legislative  function  is 
performed.  ^  There  can  be  little  doubt  that  this  increased 
participation  on  the  part  of  the  President  in  the  field  of 
legislation  meets  with  popular  approval. 

The  same  demand  that  the  Chief  Executive  shall  formu- 
late and  seek  to  secure  action  upon  a  legislative  program  is 
equally  evident  in  the  administration  of  the  affairs  of  the 
individual  states.  The  assumption  of  this  important  func- 
tion in  relation  to  legislation  by  the  Chief  Executive,  both 
of  the  federal  government  and  of  the  constituent  states, 
thus  bids  fair  to  harden  into  one  of  the  firmly  established 
conventions  of  our  constitutional  system.  In  virtue  of  this 
convention  and  the  existence  of  the  veto  power  by  the 
President  it  is  thus  not  going  too  far  to  say  that  the  Presi- 


246      THE  GOVERNMENT  OF  MODERN  STATES 

dent  now  constitutes  an  organ  of  legislation  scarcely  second 
in  power  and  importance  to  Congress  itself.1 

The  Chief  Executive  is  not  the  only  organ,  however,  with 
which  Congress  has  to  share  the  legislative  function.  It 
has  now  become  firmly  established  that  upon  the  courts  falls 
the  function  of  determining  whether  the  several  branches 
of  government  in  the  exercise  of  their  powers  have  kept 
within  the  limitations  imposed  upon  them  by  the  constitu- 
tion through  which  they  were  established  and  their  powers 
defined.  Attention  has  already  been  called  to  the  fact  that 
one  of  the  serious  consequences  of  the  attempt  to  define  by 
constitutional  enactment  the  extent  of  governmental  powers 
and  the  manner  in  which  these  powers  shall  be  distributed 
territorially  and  functionally  is  the  establishment  of  a  sys- 
tem under  which  many  questions  are  bound  to  arise  regard- 
ing the  exact  meaning  and  intent  of  these  provisions  and 

1  It  is  important  to  note  that  the  position  now  held  by  the  President 
as  one  of  the  distinct  organs  through  which  legislation  is  had  is  primar- 
ily the  result  of  the  growth  of  a  convention.  The  framers  of  the  con- 
stitution had  no  idea  that  the  President  should  play  any  such  part  in 
legislative  matters.  It  is  well  recognized  that  the  veto  power  was  con- 
ferred upon  him  not  with  a  view  that  through  it  the  President  might 
influence  legislation  generally.  It  was  granted  to  him  primarily  as  a 
weapon  through  which  he  might  protect  himself  against  an  encroach- 
ment upon  his  powers  by  Congress.  This  moreover  was  the  manner  in 
which  the  veto  power  was  interpreted,  and,  with  rare  exceptions,  acted 
upon,  by  Presidents  down  until  the  last  quarter  of  the  nineteenth  cen- 
tury. The  idea  that  it  was  proper  for  a  President  to  set  up  his  in- 
dividual judgment  against  the  collective  judgment  of  Congress  was  not 
entertained.  Now  it  is  accepted  as  quite  the  normal  thing  that  he 
should  do  so.  In  like  manner  there  was  no  conception  on  the  part  of 
the  framers  of  the  constitution  that  use  would  be  made  by  the  Presi- 
dent of  his  power  to  recommend  action  to  Congress  to  formulate  and 
put  through  if  possible  a  general  legislative  program.  Though  the 
foregoing  is  a  matter  of  historical  interest  the  fact  nevertheless  remains 
that  in  our  constitutional  system  as  actually  worked  there  is  this  large 
participation  by  the  President  in  the  exercise  of  the  legislative  power. 


DISTRIBUTION  FUNCTIONALLY  247 

their  application  to  particular  concrete  cases.  This  renders 
it  imperative  that  authority  shall  be  vested  in  some  organ 
to  pass  upon  these  questions.  Jn  the  United  States  this 
power  has  been  assumed  by  the  courts  as  a  part  of  their 
general  duty  to  interpret  the  law  of  the  land.  The  result 
is  that  all  laws  must  finally  pass  the  test  of  judicial  approval 
if  any  question  regarding  their  validity  is  raised. 

It  might  seem  that  this  power  possessed  by  the  courts  to 
construe  laws  was  distinctly  a  judicial  power  and  in  no  way 
partook  of  the  nature  of  the  exercise  of  legislative  power. 
Strictly  speaking  this  is  so.  Two  facts,  however,  have 
made  the  exercise  of  this  power  by  the  courts  one  profoundly 
affecting  the  exercise  of  the  legislative  power  in  the  United 
States.  The  first  of  these  is  the  fact  that,  in  practice,  the 
provisions  of  the  federal  and  state  constitutions  determin- 
ing the  powers  of  government  and  the  manner  of  their  ex- 
ercise have  proven  of  such  a  character  that  it  is  almost  im- 
possible for  Congress  or  a  state  legislature  to  depart  in  any 
way  from  the  beaten  path  without  giving  rise  to  the  question 
of  the  legality  of  their  action.  The  result  is  that  almost 
every  attempt  made  by  them  to  break  new  ground  for  the 
purpose  of  solving  social  problems  has  been  questioned  in 
the  courts,  and  the  latter  have  therefore  had  the  final  say  as 
to  whether  they  should  prevail.  The  second  is  that,  in 
passing  upon  these  questions,  the  courts  have  taken  the  po- 
sition that  it  is  a  part  of  their  function  to  determine  the 
facts  to  which  the  laws  are  intended  to  apply  as  well  as  to 
interpret  the  language  of  the  laws  themselves.  For  exam- 
ple, the  legislature  when  it  passes  a  law  fixing  the  maximum 
number  of  hours  of  labor  in  a  given  industry  does  so  in 
the  belief  that  the  conditions  are  such  as  to  bring  such  action 
under  the  police  power  of  the  State  and  thus  to  meet  any 
objection  that  may  be  raised  that  it  represents  an  improper 


248      THE  GOVERNMENT  OF  MODERN  STATES 

infringement  of  the  constitutional  provision  that  no  person 
shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law.  The  courts  in  passing  upon  laws  of  this 
character  have,  however,  assumed  the  power  of  question- 
ing the  soundness  of  this  belief.  If,  in  their  opinion,  such 
laws  are  not  required  -for  the  proper  protection  of  the  indi- 
viduals that  may  be  affected  by  them,  or  the  general  public, 
they  have  not  hesitated  to  declare  such  laws  null  and  void, 
as  not  representing  a  proper  exercise  of  the  police  powers 
and  consequently  as  being  instruments  violating  the  con- 
stitutional provision  just  cited.  The  issue  between  the  legis- 
lature and  the  courts  is  here  one  purely  of  fact  and  ex- 
pediency. The  propriety  of  the  courts  taking  this  position 
regarding  their  power  is  seriously  questioned.  This,  how- 
ever, is  a  matter  into  which  we  cannot  here  enter.  We  are 
concerned  now  merely  with  the  fact  that  in  our  govern- 
mental system  as  it  actually  works  at  the  present  time  the 
courts  play  a  very  large  role  in  determining  the  character 
of  legislation  that  the  country  shall  have. 

To  sum  up,  it  will  thus  be  seen  that  our  governmental 
system,  instead  of  being  one  of  the  definite  separation  and 
segregation  of  power,  is,  so  far  as  the  exercise  of  the  legis- 
lative power  is  concerned,  quite  the  reverse  that  all  three 
departments  of  government,  the  legislative,  the  executive 
and  the  judicial,  participate  in  the  exercise  of  this  power. 
Authority  and  responsibility,  instead  of  being  concentrated 
in  a  single  organ,  are  distributed  among  a  number. 

If  we  turn  from  the  legislative  to  the  executive  power  we 
find  here  too  a  failure  to  vest  the  exercise  of  this  power 
wholly  in  one  organ.  It  is  true  that  the  constitution  pro- 
vides that  "  the  executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States."  Subsequent  provisions,  how- 
ever, provide  for  the  participation  by  Congress  in  the  ex- 


DISTRIBUTION  FUNCTIONALLY  249 

ercise  of  this  power.  The  most  important  of  these  pro- 
visions are  those  which  provide  that  the  President  shall 
have  power  to  make  treaties  with  foreign  powers  only  by 
and  with  the  advice  and  consent  of  the  Senate  and  upon  the 
concurrence  of  two-thirds  of  the  Senators  present,  and  that 
Congress  and  not  the  President  shall  be  the  authority  to 
declare  war  and  to  provide  for  the  calling  forth  of  the 
militia. 

Notwithstanding  these  provisions  the  principle  of  vesting 
the  executive  power  in  the  hands  of  a  single  organ  pre- 
vails to  a  far  greater  extent  than  it  does  in  the  case  of  the 
legislative  power.  The  President,  moreover,  has  been  able 
effectivly  to  protect  himself  from  encroachment  upon  the 
exercise  of  his  executive  powers.  The  only  possible  ex- 
ception exists  in  respect  to  the  exercise  of  the  treaty  making 
power.  Here  it  is  believed  by  many  that  the  Senate  has 
pushed  its  power  to  a  greater  extent  than  was  originally 
contemplated.  In  this  the  author  does  not  concur.  It  is 
significant  that  the  provision  granting  the  power  to  the 
Senate  does  not  provide  simply  that  treaties  before  becom- 
ing effective  shall  be  approved  by  the  Senate  but  that  they 
shall  be  made  by  and  with  the  advice  and  consent  of  the 
Senate.  Clearly  this  anticipated  that  the  Senate  should  be 
consulted  throughout  the  work  of  negotiating  treaties.  If 
anything  the  practice*on  the  part  of  Presidents  of  negotiat- 
ing treaties  without  seeking  the  advice  of  the  Senate  and 
only  bringing  the  treaties  as  negotiated  before  that  body 
for  approval  or  rejection  represents  an  encroachment  on 
the  authority  of  the  Senate  as  defined  by  the  constitution. 

Of  the  several  powers,  the  judicial  power  is  the  one  which 
has  been  most  definitely  concentrated  in  a  single  organ. 
The  exercise  of  this  power  is  vested  solely  in  the  judiciary 
—  neither  the  legislative  nor  the  executive  can  be  said  to 


250      THE  GOVERNMENT  OF  MODERN  STATES 

exercise  this  power  in  any  way.  Notwithstanding  the  de- 
pendence of  the  judiciary  upon  Congress  and  the  President 
as  regards  the  determination  of  its  organization,  procedure 
and  personnel,  the  judicial  power  itself  is  not  distributed 
among  two  or  more  organs  as  is  the  case  in  respect  to  the 
executive,  legislative  and  administrative  power  but  is  ex- 
clusively vested  in  one  organ,  the  judiciary.  The  latter, 
moreover,  enjoys  a  practical  immunity  from  pressure  of 
every  sort  from  the  other  departments  of  government  in 
exercising  its  functions.  TKis  is  due,  partly  to  the  pro- 
vision of  the  constitution  that  the  judges  shall  hold  office 
during  good  behavior  and  their  compensation  shall  not  be 
reduced  during  their  terms  of  office;  but  chiefly  to  the  tradi- 
tion now  firmly  established  that  judges  should  exercise  their 
judgment  in  an  entirely  independent  manner.  This  tradi- 
tion prevents  the  other  departments  from  attempting  to  in- 
fluence the  judges  and  causes  the  judges  to  repel  any  such 
attempt  should  it  be  made.  That  in  practice  the  United 
States  has  had  a  remarkably  independent  judiciary  is  be- 
yond question. 

It  is  when  we  turn  to  the  provision,  or  rather  lack  of 
provision,  that  has  been  made  for  the  exercise  of  adminis- 
trative power  that  we  find  the  greatest  failure  definitely  to 
locate  authority  and  responsibility  in  a  single,  organ.  The 
framers  of  our  constitution  performed  their  work  at  a  time 
when  all  the  powers  of  government  were  believed  to  fall 
within  the  three  branches  of  legislative,  judicial  and  execu- 
tive. They  had  no  conception  of  the  function  of  adminis- 
tration as  one  of  the  distinct  powers  of  government.  No 
specific  reference  to  this  power  is  thus  made  in  the  con- 
stitution. More  remarkable  still,  only  an  indirect  reference 
is  made  to  the  matter  of  organization  for  the  administra- 
tion of  governmental  affairs.  This  is  found  in  the  pro- 


DISTRIBUTION  FUNCTIONALLY  251 

vision  that  the  President  "  may  require  the  opinion,  in  writ- 
ing, of  the  principal  officer  in  each  of  the  executive  depart- 
ments upon  any  subject  relating  to  the  duties  of  their  re- 
spective offices,1  and  that  the  appointment  of  inferior  of- 
ficers may  be  vested  by  Congress  "  in  the  President  alone,  in 
the  courts  of  law  or  in  the  heads  of  departments."  2 

Owing  to  the  fact  that  the  President  at  the  present  time 
in  fact  exercises  large  administrative  powers  and  is  in  ap- 
pearance the  head  of  the  administrative  departments  the 
popular  opinion  prevails  that  the  framers  of  the  constitution 
employed  the  term  executive  as  including  what  are  now 
known  as  administrative  powers  and  that  it  was  their  in- 
tention that  the  President  should  be  the  head  of  the  adminis- 
tration. This  is  a  mistake.  There  can  be  no  question  but 
that  they  used  the  term  executive  in  its  technical  sense  as 
covering  only  the  political  duties  of  the  titular  head  of  the 
nation.  "  It  was  undoubtedly  intended,"  writes  W.  W. 
Willoughby  in  his  "  Constitutional  Law  of  the  United 
States,"  "  that  the  President  should  be  little  more  than  a 
political  chief;  that  is  to  say,  one  whose  function  should  in 
the  main  consist  in  the  performance  of  those  political  duties 
which  are  not  subject  to  judicial  control.  It  was  quite  clear 
that  it  was  intended  that  he  should  not,  except  as  to  these 
political  matters,  be  the  administrative  head  of  the  govern- 
ment with  general  powers  of  directing  and  controlling  the 
acts  of  subordinate  federal  administrative  agents." 

That  this  is  the  interpretation  that  Congress  has  placed 
upon  its  powers,  and  that  it  intended  to  act  upon  this  in- 
terpretation is  evident  from  the  character  of  the  provision 
that  it  has  made  for  the  organization  and  operation  of  the 

1  Art.  2,  Sec.  2,  Pars.  I  and  2. 

2  Art.  2,  Sec.  2,  Pars.  I  and  2. 

3  W.  W.  Willoughby :  "  The  Constitutional  Law  of  the  United  States, ' 

p.  1156. 


252      THE  GOVERNMENT  OF  MODERN  STATES 

administrative  departments.  It  is  true  that  in  creating  a 
department  of  foreign  affairs  (the  present  State  Depart- 
ment) and  a  Department  of  War  it  vested  in  the  President 
large  powers  to  direct  and  control  the  operations  of  these 
departments.  It  did  so,  however,  since  these  departments 
have  to  do  almost  wholly  with  matters  affecting  the  exercise 
by  the  President  of  his  executive  powers.  To  have  failed 
to  do  so  would  have  deprived  the  President  of  the  means 
of  effectively  exercising  the  executive  powers  vested  in  him 
by  the  constitution.  When  Congress  came  to  establish  the 
Treasury  Department,  however,  it  made  this  department 
a  direct  dependency  of  Congress.  It  made  its  head,  the 
Secretary,  directly  accountable  to  it  and  not  to  the  President. 
Both  the  language  of  the  act  and  the  debates  in  Congress 
show  that  it  was  the  intention  that  the  Secretary  should 
receive  his  orders  from  Congress.  This  is  clearly  shown 
in  the  provision  that  the  Secretary  should  make  his  annual 
reports  to  it  instead  of  to  the  President.  The  same  is  true 
in  respect  to  the  Post  Office  Department.  There  is  no  in- 
dication that  these  officers  should  be  deemed  to  be  subor- 
dinates of  the  President  and  as  such  subject  to  his  superior 
direction.  Legally,  therefore,  the  heads  of  departments, 
and  in  fact  all  officers  of  the  government,  are  not  subject 
to  the  direction  of  the  President  except  in  so  far  as  Con- 
gress has  expressly  granted  to  the  President  this  power  of 
direction  and  control. 

Congress  and  not  the  President  is  thus,  in  the  intent  of 
the  constitution,  the  primary  source  of  administrative 
power,  and  such  it  is  in  fact  at  the  present  day.  It  is  the 
authority  which  determines  how  the  government  shall  be 
organized  for  the  performance  of  its  administrative  duties, 
what  offices  shall  be  provided,  what  compensation  shall  be 


DISTRIBUTION  FUNCTIONALLY  253 

paid,  what  shall  be  their  specific  duties,  and,  subject  to  a 
limitation  which  will  be  shortly  mentioned,  how  the  incum- 
bents of  these  offices  shall  be  appointed.  Congress  is  thus 
the  ultimate  directing,  supervising  and  controlling  authority 
in  respect  to  matters  administrative.  In  a  very  true  sense 
all  the  administrative  officers  of  the  government,  including 
the  President  himself,  when  the  performance  of  administra- 
tive duties  has  been  entrusted  to  him,  are  but  agents  of 
Congress  and  subject  to  its  orders  and  control. 

This  interpretation  of  the  powers  of  Congress  in  respect 
to  matters  of  administration  has  been  fully  endorsed  by  the 
Supreme  Court.  The  leading  case  on  this  question  is  that 
of  United  States  v.  Kendall  (5  Cranch  C.  C.  163,  272)  in 
which  was  raised  the  question  of  the  power  of  Congress 
and  the  President  over  the  acts  of  the  Postmaster  General. 
In  the  course  of  its  decision  the  Court  said: 

The  legislature  may  prescribe  the  duties  of  the  office  at  the  time 
of  its  creation,  or  from  time  to  time  as  circumstances  may  require. 
If  those  duties  are  absolute  and  specific  and  not  by  law  made  sub- 
ject to  the  control  or  discretion  of  any  superior  officer,  they  must 
be  performed,  whether  forbidden  or  not  by  any  other  officer.  If 
there  be  no  other  officer  who  is  by  law  specially  authorized  to  direct 
how  the  duties  are  to  be  performed  the  officer  whose  duties  are  thus 
prescribed  by  law  is  bound  to  execute  them  according  to  his  own 
judgment.  That  judgment  cannot  lawfully  be  controlled  by  any 
other  person.  .  .  . 

As  the  head  of  an  executive  department  he  (the  Postmaster  Gen- 
eral) is  bound,  when  required  by  the  President,  to  give  his  opinion 
in  writing  upon  any  subject  relating  to  the  duties  of  his  office. 
The  President  in  the  execution  of  his  duty  to  see  that  the  laws 
be  faithfully  executed  is  bound  to  see  that  the  Postmaster  General 
discharges  faithfully  the  duties  assigned  to  him  by  law;  but  this 
does  not  authorize  him  to  direct  how  he  shall  discharge  them. 


254      THE  GOVERNMENT  OF  MODERN  STATES 

The  Supreme  Court  on  the  case  being  appealed  to  it  en- 
dorsed this  opinion  and  in  the  course  of  its  own  opinion 
said : 1 

It  by  no  means  follows  that  every  officer  in  every  branch  of  that 
(the  executive)  department  is  under  the  exclusive  direction  of  the 
President.  ...  It  would  be  an  alarming  doctrine  that  Congress 
cannot  impose  upon  any  executive  officer  any  duty  they  may  think 
proper  which  is  not  repugnant  to  any  rights  secured  and  protected 
by  the  constitution,  and  in  such  cases  the  duty  and  responsibility 
grow  out  of  and  are  subject  to  the  control  of  the  law  and  not  to  the 
direction  of  the  President. 

Though  Congress  has  thus  been  made  and,  is,  in  fact, 
the  primary  source  of  administrative  authority,  the  entire 
administrative  power  is  not  vested  in  its  hands.  In  two  im- 
portant respects  participation  in  the  exercise  of  the  admin- 
istrative power  has  been  vested  in  the  Executive.  Reference 
is  made  to  the  provisions  of  the  constitution  which  provide 
that  the  President  shall  "  take  care  that  the  laws  be  faith- 
fully executed  "  and  that :  "  he  shall  nominate  and  by  and 
with  the  advice  and  consent  of  the  Senate  appoint  ambassa- 
dors, other  public  ministers  and  consuls,  judges  of  the  Su- 
preme Court  and  all  other  officers  of  the  United  States 
whose  appointments  are  not  herein  otherwise  provided  for 
and  which  shall  be  established  by  law;  but  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers 
as  they  think  proper  in  the  President  alone,  in  the  courts 
of  law  or  in  the  heads  of  departments.*' 

The  first  of  these  provisions,  it  should  be  noted,  confers 
no  powers  upon  the  President  additional  to  those  elsewhere 
specifically  granted  to  him.  It  does,  however,  impose  upon 
him  the  obligation  of  making  use  of  these  powers  in  such 
a  way  as  to  see  that  the  laws  are  duly  executed.  Responsi- 

1 12  Peters  524,  610  Kendall  v.  U.  S. 


DISTRIBUTION  FUNCTIONALLY  255 

bility  in  respect  to  matters  of  administration  is  thus  very 
definitely  imposed  upon  him.  Apart  from  any  specific  duty 
that  may  be  imposed  upon  him  by  Congress  the  President 
is  thus  made  by  the  constitution  one  of  the  authorities 
through  which  a  proper  exercise  of  the  administrative  power 
is  to  be  had. 

It  is  in  the  second  provision,  however,  that  the  President 
is  granted  the  most  direct  participation  in  the  exercise  of 
the  administrative  power.  The  power  of  nominating  and 
appointing  the  chief  officers  by  whom  the  affairs  of  the  gov- 
ernment shall  be  carried  on  necessarily  carries  with  it  both 
a  great  responsibility  and  a  great  power  to  control  the  man- 
ner in  which  affairs  shall  actually  be  administered.  This  is 
especially  so  when  it  is  held  that  the  power  of  appointment 
carries  with  it  the  power  of  dismissal.  Though  the  con- 
stitution failed  to  cover  this  point  specifically,  Congress  has 
repeatedly  sanctioned  the  view  that  the  power  constitution- 
ally resides  in  the  President  to  dismiss  all  officers  which  are 
appointed  by  him  alone  or  by  and  with  the  advice  and  con- 
sent of  the  Senate.  The  acquiescence  of  the  latter  body  is  ^ 
not  necessary  even  in  those  cases  where  its  approval  is  re-  ) 
quired  for  appointment.  This  question  was  thoroughly/ 
threshed  out  in  the  first  Congress  in  connection  with  the 
framing  of  the  law  providing  for  the  establishment  of  a  / 
department  of  foreign  affairs.  It  was  decided  then  that 
the  power  of  dismissal  should  rest  with  the  President.  The 
chief  consideration  leading  to  the  adoption  of  this  position 
was  that  this  power  was  essential  to  the  proper  discharge 
by  the  President  of  his  constitutional  duty  of  seeing  that 
the  law  was  properly  enforced. 

The  position  then  taken  has  been  consistently  followed 
ever  since,  with  the  single  exception  of  the  attempt  made 
by  Congress  to  control  the  powers  of  President  Johnson 


256      THE  GOVERNMENT  OF  MODERN  STATES 

through  the  passage  of  the  Tenure  of  Office  Acts  of  1867 
and  1869.  These  acts  were  passed  under  exceptional  cir- 
cumstances as  a  phase  of  the  bitter  struggle  between  Con- 
gress and  the  President  which  culminated  in  the  latter's 
attempted  impeachment.  They  were  brought  before  the 
courts  for  judicial  determination  and  after  the  special  cir- 
cumstances leading  to  their  enactment  had  passed  away  were 
in  1886  repealed. 

The  question  as  to  what  officers  are  covered  by  the  ex- 
pression "  all  other  officers  of  the  United  States  whose  ap- 
pointments are  not  herein  otherwise  provided  for  "  as  dis- 
tinguished from  "  inferior  officers "  the  appointment  of 
which  may  be  vested  by  Congress  in  the  President  alone,  in 
the  courts  or  in  the  heads  of  departments  has  never  been 
judicially  determined.  In  practice,  however,  the  heads  of 
departments  and  their  major  subdivisions,  the  bureaus, 
members  of  commissions  and  boards,  and  even  the  more 
important  local  officers  such  as  collectors  of  customs,  col- 
lectors of  internal  revenue  and  the  postmasters  of  large 
cities  have  been  treated  as  ones  the  concurrence  of  the  Sen- 
ate in  the  appointment  of  which  is  required.  The  great 
majority  of  all  other  administrative  officers  are  treated  as 
inferior  officers  and  their  appointment  is  vested  in  the  Presi- 
dent alone  or  in  the  heads  of  the  departments. 

In  this  connection  it  may  be  noted  that  this  provision  of 
the  constitution  regarding  the  appointment  of  officers,  both 
superior  and  inferior,  has  been  construed  by  the  courts  as 
denying  to  Congress  itself  all  powers  of  appointment.  This 
follows  from  the  fact  that  specific  provision  is  made  how 
superior  officers  shall  be  appointed  and  that  Congress  is 
not  included  in  the  enumeration  of  authorities  in  whom  the 
appointment  of  inferior  officers  may  be  vested.  Congress 


DISTRIBUTION  FUNCTIONALLY  257 

can  create  and  abolish  offices  but  it  cannot  designate  the   \ 
persons  to  fill  these  offices.1 

We  have  entered  thus  fully  into  the  question  of  the  power 
to  appoint  and  dismiss  administrative  officers  since  it  must 
be  evident  that  the  officer  possessing  this  power,  not  only 
shares  in  the  responsibility  for  the  proper  conduct  of  the 
administration  of  affairs  but  is  in  a  position  where  he  can  *' 
direct  and  control  the  manner  in  which  the  administrative 
power  shall  be  exercised.  Not  only  can  he,  in  choosing  per- 
sons for  appointment,  make  a  selection  of  those  who  have 
opinions  conforming  to  his  own,  but  he  can  thereafter  , 
control  their  action  by  removing  from  office  those  who  re- 
fuse to  carry  out  his  will.  Whatever  may  be  his  lack  of 
legal  authority,  actual  power  is  thus  possessed  by  him  to 
direct  how  affairs  shall  be  conducted.  This  is  a  power 
which  the  President  has  not  hesitated  to  exercise.  The  \ 
most  notable  case  of  its  exercise  is  that  of  the  removal  by 
"Pregirlpgtjackson  of  successive  Secretaries  of  the  Treasury 
who  refused  to  7oHo\\rhis--oi  ders  regui  dingffre  Tcmeval  of 
government  deposits  from  the  first  JBank  of  the  United 
States.  This  led  to  a  direct  issue  between  the  President  and 
Congress  and  caused  the  latter  to  pass  a  vote  of  censure 
upon  the  President  for  his  action.  The  President,  however, 
carried  his  point.  At  the  present  time  it  is  rarely  necessary 
for  the  President  to  carry  his  action  this  far.  The  knowl- 
edge that  he  has  this  power  of  removal  is  sufficient. 

Much  the  most  significant  feature  of  this  whole  question 


1  It  is  of  interest  to  note  that  the  individual  states  have  not  in  all  cases 
followed  the  practice  of  the  United  States  in  respect  to  the  appointment    / 
and  dismissal  of  administrative  officers.    In  many  cases  an  officer  ap-      / 
pointed  by  the  Governor  upon  the  approval  of  the  legislature  or  one     C, 
of  its  houses,  can  only  be  dismissed  by  the  Governor  upon  the  concur- 
rence of  the  latter  body  being  had. 


258      THE  GOVERNMENT  OF  MODERN  STATES 

of  the  direction  and  control  of  administrative-  officers  by 

/  the  President  lies,  however,  in  the  fact  that  at  the  present 

time  the  exercise  by  the  President  of  such  power  is  now 

,  looked  upon  by  the  country  as  thoroughly  legitimate  and  is 

acquiesced  in  by  both  Congress  and  the  heads  of  depart- 

ments.     It  may  now  be  said  that  the  convention  is  fairly 

established  that  the  wishes  of  the  President,  in  so  far  as 

i    they  are  not  in  conflict  with  provisions  of  law,  should  con^ 

trol   administrative   officers   in   the  performance   of   their 

duties^ 

Though  the  present  administrative  powers  of  the  Presi- 
dent are  in  large  part  the  outgrowth  of  this  power  of  re- 
X  nioval,  other  causes  have  contributed  not  a  little  to  the  same 
end.  With  the  growing  complexity  of  governmental  inter- 
ests Congress  has  found  it  impossible  to  provide  in  advance 
by  means  of  legislation  the  precise  means  that  should  be 
employed  and  the  steps  that  should  be  taken  in  carrying 
through  many  important  classes  of  governmental  under- 
takings. More  and  more  therefore  it  has  pursued  the  pol- 
icy of  delegating  to  the  President  large  discretionary  powers 
in  respect  to  the  carrying  out  of  its  policies.  In  no  small 
part  therefore  the  present  powers  of  the  President  in  re- 
spect to  administrative  matters  rest  upon  specific  statutory 
enactments.  Notable  instances  where  this  policy  has  been 
pursued  by  Congress  are  furnished  by  the  acts  providing  for 
the  construction  of  the  Panama  Canal,  the  first  government 
of  the  Philippines,  and  the  creation  of  agencies  for  the  meet- 
ing of  the  many  problems  arising  out  of  the  present  great 
war.  In  all  these  cases  the  President  was  given  practically 
carte  blanche  to  take  such  action  in  relation  to  these  matters 
as  he  saw  fit.  In  scores  of  minor  matters  a  similar  author- 
ity has  been  conferred  upon  the  President. 

Finally  mention  should  be  made  of  the   fact  that  the 


DISTRIBUTION  FUNCTIONALLY  259 

courts,  in  interpreting  the  constitutional  provisions  bearing 
upon  the  powers  of  the  President,  have  been  exceedingly 
sympathetic  to  this  development  of  the  administrative  pow- 
ers of  the  latter.  A  broad  construction  has  been  given  to 
the  provisions  that  it  is  the  duty  of  the  President  to  see 
that  the  laws  are  properly  enforced.  Wherever  possible 
the  authority  of  the  President  over  administrative  officers 
has  been  supported  as  necessary  in  order  that  the  former 
might  effectively  discharge  this  duty. 

Viewing  conditions  as  they  actually  are,  it  will  thus  be 
seen  that,  in  the  United  States,  the  exercise  of  the  adminis- 
trative power  is  fairly  evenly  distributed  between  the  legis- 
lative and  the  executive  branches  of  the  government.  The 
former  possesses  the  entire  authority  to  determine  what 
work  shall  be  undertaken,  the  plant  and  organization  and 
personnel  that  shall  be  made  use  of  and  the  procedure  that 
shall  be  employed.  The  latter,  subject  to  the  necessity  for 
securing  the  concurrence  of  the  Senate  in  respect  to  impor- 
tant offices,  has  the  determination  of  the  persons  who  shall 
constitute  this  personnel,  and,  in  consequence  of  this  power 
and  the  other  facts  which  we  have  mentioned,  has  a  large 
power  of  direction  and  control  over  the  manner  in  which 
they  carry  out  the  orders  given  by  Congress.  Both  author- 
ity and  responsibility  for  the  actual  conduct  of  governmen- 
tal operations  are  thus  divided  between  the  two  branches  of 
government.  This  is  strikingly  evidenced  in  respect  to  that 
most  important  of  all  acts  of  administration,  the  preparation 
and  enactment  of  the  budget  by  which  the  annual  revenue 
and  expenditure  needs  of  the  government  are  determined. 
We  have  seen  that  in  Great  Britain  the  preparation  and 
enactment  of  the  budget  rest  wholly  in  the  hands  of 
the  administrative  branch  of  the  government,  that  Parlia- 
ment participates  in  this  work  only  through  the  require- 


260      THE  GOVERNMENT  OF  MODERN  STATES 

ments  which  exists  that  the  budget  as  formulated  shall  be 
laid  before  it  and  that  it  shall  have  an  opportunity  to  criti- 
cise its  provisions.  In  the  United  States  the  budget,  or 
rather  the  determination  of  the  manner  in  which  the  rev- 
enue of  the  government  shall  be  raised  and  expended,  for, 
technically  speaking,  the  United  States  has  no  budget,  is  a 
matter  requiring  the  joint  action  of  the  legislative  and  ad- 
ministrative branches. 

If  now  we  seek  to  sum  up  and  characterize  in  general 
terms  the  system  of  government  of  the  United  States  from 
the  standpoint  of  the  manner  in  which  this  problem  of  dis- 
tribution of  powers  functionally  has  been  met,  it  will  be 
seen  that  the  system  established,  instead  of  being  one  of 
separation  of  powers,  as  is  popularly  supposed,  is  one  of 
union  of  powers  both  organically  and  personally.  It  is 
true  that  special  organs  have  been  created  for  the  exercise 
of  legislative,  executive  and  judicial  powers  and  that  gen- 
eral provisions  have  been  incorporated  in  the  costitution 
that  the  legislative,  the  executive  and  the  judicial  powers 
respectively  shall  be  vested  in  these  organs.  Actually,  how- 
ever, as  we  have  seen,  no  one  of  these  organs  is  independent 
and  supreme  within  its  own  field.  Especially  is  this  true  in 
respect  to  the  two  branches  which  are  most  directly  con- 
cerned with  the  actual  conduct  of  the  internal  affairs  of 
government  —  the  legislative  and  the  executive. 

This  system  under  which  each  branch  in  its  operations  is 
more  or  less  subject  to  the  control  of  one  or  both  of  the 
other  two  branches  is  one  which  has  been  aptly  designated 
as  a  system  of  checks  and  balances.  The  explanation  of  the 
adoption  of  a  system  of  this  character  lies  in  the  apprehen- 
sion that  existed  at  the  time  of  the  adoption  of  the  consti- 
tution of  the  danger  which  it  was  believed  was  inherent  in 
any  governmental  system  of  the  abuse  of  power  by  those  in 


DISTRIBUTION  FUNCTIONALLY  261 

authority.  One  has  but  to  read  the  discussions  of  the 
period  to  see  how  the  framers  of  our  constitution  were 
dominated  by  the  fear  that  either  the  popular  branch  of  the 
government,  the  legislative,  or  the  executive  would  so  exer- 
cise its  powers  as  to  establish  in  effect  a  popular  or  auto- 
cratic tyranny.  All  governments,  they  believed,  had  to  steer 
a  difficult  course  between  the  Scylla  of  executive  tyranny  on 
the  one  hand  and  the  Charybdis  of  Democracy,  or  mob 
rule  as  it  was  designated,  on  the  other.  Safety  they  be- 
lieved could  only  be  secured  by  making  it  possible  for  one 
branch  of  the  government  to  check  the  other  at  all  vital 
points.  Due  to  this  belief  the  framers  of  our  constitution 
were  more  interested  in  the  negative  than  in  the  positive 
aspects  of  government,  or  at  least  gave  undue  prominence 
to  the  former.  They  were  more  concerned  in  preventing 
abuses  and  forestalling  possible  dangers  than  in  establishing 
an  efficient  governmental  organization. 

Comparison  of  the  Systems  of  a  Union  and  a  Separa- 
tion of  Powers. —  Having  analyzed  the  problem  of  the 
functional  distribution  of  governmental  powers,  and  de- 
scribed the  manner  in  which  this  problem  has  actually  been 
met  by  the  two  great  nations  the  governments  of  which  best 
illustrate  the  different  systems  that  may  be  established,  it 
now  remains  for  us  to  compare  these  two  systems  for  the 
purpose  of  determining  their  relative  advantages.  In  mak- 
ing this  comparison  it  is  necessary  to  bear  in  mind  the  dis- 
tinctions which  we  have  made  between :  first,  the  union  or 
separation  of  powers  from  the  constitutional  standpoint, 
that  is,  from  the  standpoint  of  the  constituent  authority 
vesting  all  powers  in  the  first  instance  in  a  single,  or  in  a 
number  of  coordinate  organs,  and  second,  between  the  actual 
union  or  separation  of  powers  organically  and  personally 
Thus  we  have  seen  that  the  government  of  Great  Britain  is 


262      THE  GOVERNMENT  OF  MODERN  STATES 

one  of  a  complete  union  of  powers  from  the  constitutional 
standpoint,  one  of  a  complete  separation  of  powers  from 
the  standpoint  of  the  actual  exercise  of  the  several  powers 
by  distinct  organs,  and  one  of  a^  union  of  powers  from  the 
standpoint  of  the  individuals  having  the  direction  of  these 
organs;  while  that  of  the  United  States  is  one  of  a  separa- 
tion of  powers  from  the  constitutional  standpoint,  and  one 
of  a  union  of  powers,  both  organically  and  personally,  from 
the  standpoint  of  the  actual  exercise  of  these  powers. 

Confining  our  attention,  first  to  the  two  opposing  systems 
of  a  constitutional  union  or  separation  of  powers,  we  find 
that  the  system  of  a  union  of  powers  has  all  those  advan- 
tages which  we  have  seen  attach  to  a  Unitary  as  opposed  to 
a  Multiple  Government.  In  the  first  responsibility  for  the 
conduct  of  all  the  affairs  of  government  is  definitely  located 
in  a  single  organ.  The  government  resulting  has  thus  the 
unity  of  responsibility,  direction  and  power  that  constitutes 
the  chief  merit  of  an  autocratic  government  when  in  the 
hands  of  a  benevolent  ruler.  Joined  with  this  advantage  is 
that  of  complete  flexibility,  the  power  to  change  its  internal 
organization  at  will  and  thus  to  make  it  conform  to  new  con- 
ditions and  desires  as  they  arise.  Just  as  a  Unitary  Gov- 
ernment has  it  always  in  its  power  to  make  such  a  distribu- 
tion of  the  exercise  of  governmental  powers  territorially  as 
conditions,  in  its  opinion,  demand,  so  the  government  of  a 
constitutional  union  of  powers  can  make  such  a  distribution 
of  its  powers  functionally  as  in  its  opinion  will  permit  of 
the  most  effective  exercise  of  such  powers.  Another  impor- 
tant feature  of  this  system  is  the  extent  to  which  is  avoids 
the  difficulties  of  conflicts  of  authority  and  jurisdiction  and 
the  ease  with  which  such  conflicts  as  do  arise  can  be  ad- 
justed. Finally,  with  authority  thus  concentrated  the  full 


DISTRIBUTION  FUNCTIONALLY  263 


power  of  the  government  can  be  promptly  brought  to  bear 
upon  any  great  emergency. 

None  of  these  advantages  is  present  in  a  government  of  a 
constitutional  separation  of  powers.  Responsibility  and  au- 
thority are  here  divided  among  a  number  of  organs.  Each 
is  jealous  of  its  own  power.  If  affairs  do  not  go  satisfac- 
torily each  seeks  to  throw  the  blame  upon  the  others. 
Effective  cooperation  between  the  several  organs  is  at  all 
times  difficult  to  secure.  Instead  of  being  flexible  the  sys- 
tem is  characterized  by  extreme  rigidity.  No  change  in 
the  distribution  of  authority  can  be  made  except  by  appeal 
to  the  constituent  authority  by  which  the  distribution  was 
originally  made.  In  its  practical  operation  disputes  regard- 
ing the  powers  of  the  several  organs  are  bound  to  arise  and 
these  disputes  cannot  be  settled  on  their  merits  by  an  act  of 
legislation  but  must  be  decided  by  the  courts  who,  in  reach- 
ing their  decisions,  are  bound  by  the  wording  of  the  consti- 
tution. The  result  is  that  not  only  is  the  decision  made  by 
the  branch  of  government  which  is  not  concerned  with  mat- 
ters of  policy  and  expediency,  but  the  decision  itself  is  often 
one  which  fails  to  conform  to  the  needs  of  the  case  and  is 
contrary  to  the  wishes  of  the  government  and  of  the  people 
as  a  whole.  In  all  such  cases  the  only  remedy  ds_by  way  of 
the  difficult  process  of  securing  an  amendment  to  the  con- 
stitution. Finally,  the  government  finds  itself  unable 
promptly  to  bring  to  bear  all  of  its  powers  for  the  meeting 
of  grave  crises.  If  unity  of  action  at  all  can  be  secured  it  is 
secured  with  difficulty  and  with  unavoidable  delay.  In  the 
case  of  the  United  States,  only  by  giving  to  the  so-called 
war  powers  of  the  President  the  broadest  sort  of  construc- 
tion has  it  been  possible  for  that  government  to  meet  even 
in  a  measurable  degree  the  exigencies  of  a  great  war. 


264      THE  GOVERNMENT  OF  MODERN  STATES 

When  the  crisis  is  one  not  involving  the  use  of  military 
force,  this  resource  is  not  available.  The  government  of  a 
constitutional  union  of  powers,  in  a  word,  can  meet  emer- 
gencies as  they  arise  with  its  hands  free ;  the  government  of 
a  constitutional  separation  of  powers  must  meet  them  with 
its  hands  more  or  less  shackled.. 

With  the  intrinsic  advantages  so  wholly  in  favor  of  the 
constitutional  union  of  powers,  one  must,  as  in  the  case  of 
the  adoption  of  the  multiple  form  of  government  seek  for 
an  explanation  of  the  fact  that  so  many  States  have  adopted 
the  less  advantageous  system.  In  the  case  of  the  adaption  of 
the  multiple  form  of  government  the  explanation  we  have 
seen  to  lie  in  the  historical  circumstances  under  which  these 
governments  came  into  existence.  In  the  present  case  the 
explanation  lies  in  the  prevalence  of  the  belief  that  a  consti- 
tutional separation  of  powers  is  necessary  in  order  to  main- 
tain the  political  liberties  of  the  people.  This  belief  in  turn 
rests  upon  the  belief  that  any  authority  possessing  political 
power  will  seek  to  increase  its  power  and  that,  unless  it  is 
subject  to  control  by  other  authorities,  there  is  the  grave 
danger  that  it  will  sooner  or  later  exercise  these  powers 
in  such  a  way  as  to  destroy  political  liberty  and  put  in 
jeopardy,  if  not  absolutely  to  annul,  the  most  cherished  of 
individual  rights. 

For  the  acceptance  of  this  theory  the  great  French  writer 
Montesquieu  is  chiefly  responsible.  In  his  notable  work, 
"The  Spirit  of  the  Laws/'  published  in  1748,  Montesquieu 
sought  among  other  things  to  discover  the  secret  of  the  en- 
joyment by  the  people  of  England  of  political  liberty  while 
those  of  most  European  countries  were  practically  without 
political  rights.  By  a  mistaken  interpretation  of  the  Brit- 
ish constitutional  system  he  thought  that  the  answer  to  this 
secret  was  to  be  found  in  the  fact  that  in  that  country  the 


DISTRIBUTION  FUNCTIONALLY  265 

powers  of  government,  instead  of  resting  wholly  in  the  hands 
of  a  'single  organ,  were  distributed  among  the  three  great 
branches  of  government.  In  point  of  fact  the  real  explana- 
tion of  the  individual  and  political  rights  enjoyed  by  the 
inhabitants  of  Great  Britain  was  to  be  found  in  the  develop- 
ment of  that  great  body  of  legal  rules  known  as  the  common 
law  of  England,  a  body  of  laws  which  Englishmen  rightly 
looked  upon  as  their  most  cherished  possession  and  which 
they  were  prepared  to  defend  to  the  utmost.  The  funda- 
mental principles  at  the  basis  of  this  jurisprudence,  as  it 
affected  the  question  of  government,  were  that  all  govern- 
ment should  be  one  of  law  and  that  this  law  should  have  as 
its  prime  purpose  the  protection  and  promotion  of  the 
rights  of  the  people.  The  only  real  protection  that  the  peo- 
ple of  England  have  had  against  tyranny,  or  indeed  have  at 
the  present  time,  is  their  determination  that  these  principles 
shall  prevail. 

This  theory  of  Montesquieu  met  with  almost  unanimous 
acceptance  in  America.  It  was  due  to  a  belief  in  its  valid- 
ity, and  to  a  failure  similar  to  that  of  Montesquieu  to  under- 
stand the  real  nature  of  the  political  system  of  Great  Britain, 
that  the  principle  of  the  separation  of  powers  was  made  one 
of  the  fundamental  features  of  our  governmental  system. 

It  may  well  be  that  at  the  time  our  constitution  was 
framed  the  danger  of  an  illegitimate  use  of  power  and  the 
possible  establishment  of  a  tyranny  was  sufficiently  real  to 
warrant  the  taking  of  unusual  precautions  to  meet  it. 
Granting  this,  the  question  nevertheless  remains  whether 
any  such  need  now  exists;  whether,  in  view  of  the  mani- 
festly greater  technical  advantages  of  the  system  of  a  union 
of  powers,  steady  progress  towards  that  system  should  not 
be  attempted.  In  two  respects  conditions  are  now  radically 
different  from  what  they  were  when  our  government  was 


266      THE  GOVERNMENT  OF  MODERN  STATES 

first  established.  Public  opinion  is  now  of  so  great  power, 
and  possessed  of  such  effective  means  for  its  expression, 
that  it  is  almost  inconceivable  that  any  government  authority 
could  seize  power*  that  was  not  its  for  the  purpose  of  trans- 
forming the  government  in  any  way  not  acceptable  to  the 
people.  The  danger  of  the  establishment  of  a  tyranny  so 
much  feared  by  our  forefathers  is  almost  non-existent.  In 
the  second  place*  the  demands  upon  the  government  for  posi- 
tive action  are  enormously  greater  than  they  were,  and  are 
growing  all  the  time.  Restraints  upon  the  action  of  govern- 
ment which  were  felt  to  a  relatively  slight  degree  are  now 
becoming  intolerable.  It  is  of  first  importance,  therefore, 
that  we  should  at  least  realize  to  what  features  of  our  con- 
stitutional systems  these»  restraints  are  due. 

If  we  turn  now  from  a  comparison  of  the  relative  advan- 
tages of  a  union  or  separation  of  powers,  constitutionally 
speaking,  to  that  of  their  union  or  separation  as  regards 
their  actual  exercise  we  will  find  all  the  advantages  the 
other  way.  The  system  under  which  the  whole  responsibil- 
ity for  exercise  of  each  power  is  vested  in  a  separate  organ 
possesses  great  advantages  over  that  whereby  cooperation 
on  the  part  of  two  or  more  branches  of  the  government  is 
required  before  action  can  be  had.  It  is  desirable  that  the 
whole  legislative  power  shall  be  vested  in  the  legislative 
branch  of  the  government,  the  executive  in  the  executive, 
the  administrative  in  the  administrative  and  the  judicial  in 
the  judicial.  It  is  possible  that  an  exception  to  this  may  be 
desirable  in  the  case  of  the  treaty  making  power  and  pos- 
sibly one  or  two  other  matters.  The  principle  of  the  defi- 
nite location  of  the  exercise  of  each  power  in  a  distinct 
organ  is,  however,  the  correct  one.  The  reasons  for  this 
are  obvious  and  have  been  fully  set  forth  in  our  considera- 
tion of  the  systems  of  government  of  Great  Britain  and  the 


DISTRIBUTION  FUNCTIONALLY  267 

United  States.  The  evils  resulting  from  the  Congress  in- 
tervening in  executive  and  administrative  matters  are  con- 
stantly in  evidence.  The  manner  in  which  public  funds  are 
voted  for  local  improvements  which  correspond  to  no  na- 
tional need,  the  insistence  upon  the  building  of  post-offices 
and  other  public  buildings,  the  maintenance  of  navy  yards, 
army  posts  and  local  offices  which  are  not  necessary^  and  in 
many  cases  positive  drags  upon  the  services  to  which  they 
relate,  are  the  most  striking  illustrations  of  the  bad  conse- 
quences of  this  system.  The  damage  done  by  the  attempt 
of  Congress  to  control  matters  of  administration  affects, 
however,  almost  every  branch  and  phase  of  administration. 

In  like  manner  the  work  of  securing  desirable  legislation 
is  much  complicated  by  the  intervention  of  the  President. 
If  Congress  withdrew  from  the  field  of  administration  the 
main  argument  in  favor  of  the  President  actively  interven- 
ing in  the  legislative  field  would  be  destroyed.  It  is  hardly 
a  satisfactory  condition  of  affairs  when  a  single  man  can 
make  his  individual  judgment  prevail  over  that  of  the  Con- 
gress, such  as  took  place  when  an  immigration  bill  was  on 
three  occasions  defeated  by  the  vetoes  of  three  successive 
presidents. 

It  is  of  course  recognized  that  the  several  branches  of  a 
government  should  at  all  times  be  regarded  as  but  parts  of 
a  single  organization  and  that  means  should  exist  by  which 
their  harmonious 'cooperation  for  the  attainment  of  common 
ends  may  always  be  had.  This  is  secured  by  the  vesting  of 
all  authority  in  the  first  instance  in  a  single  one  of  the 
branches,  the  legislative.  If  combined  with  this  there  can 
be  a  personal  union  of  power  as  exists  in  the  British  system 
so  much  the  better. 


PART  VI 

THE  ORGANIZATION  OF  THE  SEVERAL 
BRANCHES  OF  GOVERNMENT 


CHAPTER  XII 

THE   ELECTORAL   BRANCH 

In  the  preceding  chapters  we  have  sought  to  raise  and 
discuss  in  their  logical  order  those  fundamental  questions 
which  have  to  be  met  by  all  peoples  in  organizing  them- 
selves as  States  and  framing  schemes  of  government 
through  which  the  latter  may  act.  These  questions  are  all 
of  what  may  be  termed  a  constitutional  character,  since 
definite  answers  to  them  must  be  given  at  the  time  that  sys- 
tems of  government  are  brought  into  existence.  It  is  these 
questions,  or  rather  the  answers  that  are  given  to  them, 
which  determine  the  type  of  government  resulting  and  thus 
serve  to  make  known  the  really  fundamental  differences 
between  the  governments  of  modern  States.  Until  they  are 
settled  it  is  impossible  for  a  people  even  to  consider,  much 
less  to  answer,  the  many  more  subordinate  questions  that 
are  involved  in  the  organization  of  a  government  and  the 
determination  of  its  methods  of  procedure. 

Having  cleared  the  way  by  an  examination  of  these  basic 
matters,  we  now  pass  to  a  consideration  of  questions  of 
quite  a  different  class.  They  are  designated  different  since, 
for  the  most  part,  they  are  not  constitutional  in  the  sense 
that  answers  to  them  must  be  given  in  framing  a  formal 
constitution,  and  because  they  deal  with  specific  parts,  or 
branches,  of  government  rather  than  the  government  as  a 
whole. 

In  considering  these  questions  it  will  not  be  practicable 
for  us  to  give  them  the  same  detailed  examination  that  we 

271 


272      THE  GOVERNMENT  OF  MODERN  STATES 

have  in  the  case  of  the  first  or  constitutional  class  of  ques- 
tions. This  arises  from  the  fact  that,  in  proportion  as  we 
push  our  inquiry  from  general  to  less  general  questions,  the 
field  for  variations  in  practice  widens.  Anything  like  a 
detailed  examination  of  every  question  arising  in  the  work 
of  actually  framing  the  details  of  governmental  organiza- 
tion and  procedure  would  consequently  require  a  work  many 
times  longer  than  the  one  here  undertaken.  All  that  can  be 
attempted,  therefore,  is  an  analysis  of  the  several  problems 
that  are  presented  in  providing  for  the  organization  of  the 
five  branches  into  which,  as  we  have  seen,  the  governmental 
structure  may  be  divided ;  an  indication  of  the  more  impor- 
tant considerations  that  must  be  taken  into  account  in  de- 
ciding between  alternative  lines  of  action  that  are  open; 
and  a  summary  statement  of  how  these  several  problems 
have  in  fact  been  met  by  our  own  and  other  governments. 

In  entering  upon  a  consideration  of  these  separate 
branches  of  government  an  exceedingly  important  distinc- 
tion must  be  made:  that  between  the  electoral,  legislative, 
judicial,  executive  and  administrative  functions  of  govern- 
ment as  functions  and  the  organs  and  branches  of  govern- 
ment bearing  these  designations.  This  is  necessary  since, 
as  we  have  pointed  out  in  our  consideration  of  the  union  or 
separation  of  powers,  we  find  the  branches  of  government 
bearing  these  designations,  in  fact  performing,  or  partici- 
pating in  the  performance  of,  the  functions  pertaining  pri- 
marily to  other  branches.  This  is  especially  so  in  the  case 
of  our  own  government. 

Another  point  of  equal  importance  is  that,  though  we  may 
study  the  several  branches  of  government  separately,  sight 
must  never  be  lost  of  the  fact  that  these  several  branches 
are  but  parts  of  one  machine  and  must  always  be  studied 
from  this  viewpoint.  In  no  small  degree  the  most  difficult 


THE  ELECTORAL  BRANCH  273 

questions  presented  in  the  whole  field  of  government  and 
administration  are  those  having  to  do  with  the  distribution 
of  powers  between  these  branches  and  the  adjustment  of 
their  relations  with  each  other  to  the  end  that  all  may  work 
harmoniously  as  one  piece  of  integrated  machinery. 

The  Electorate  the  Foundation  of  Popular  Govern- 
ment.—  In  a  Popular  Government  of  the  representative 
type  the  electoral  branch  may  be  viewed  as  the  foundation 
upon  which  the  whole  structure  of  government  is  erected. 
It  is  thus  logical  that  a  consideration  of  the  several  branches 
of  government  should  begin  with  it. 

A  political  community  is  composed  of  separate  individu- 
als each  with  his  individual  will,  and,  in  the  case  of  almost 
all  modern  States,  of  a  great  many  individuals  with  corre- 
spondingly large  numbers  of  separate  wills.  It  is  thus 
necessary  to  provide  some  means  by  which  these  several 
wills  may  be  expressed  and  common  decisions  arrived  at. 
There  is  but  one  method  by  which  this  can  be  done  in  a 
populous  community  —  that  through  the  device  known  as 
voting.  In  political  science  a  person  viewed  as  a  voter  in 
respect  to  matters  political  is  termed  an  Elector  and  the  en- 
tire body  of  citizen  voters  an  Electorate.  Concretely, 
therefore,  the  primary  problem  presented  to  a  community 
desiring  to  establish  a  Popular  Government  is  to  organize 
itself  as  an  electorate,  or  to  make  a  selection  of  those  of  its 
members  whom  it  desires  to  act  in  this  capacity. 

Determination  of  the  Composition  of  the  Electorate. 
—  Were  a  political  community  composed  wholly  of  indi- 
viduals equally  capable  of  expressing  an  intelligent  opinion 
regarding  matters  of  general  interest  the  problem  of  pro- 
viding a  voting  system  through  which  a  general  will  might 
be  evolved  from  a  collection  of  individual  wills  would  be 
comparatively  simple.  In  all  communities,  however,  a  very 


274      THE  GOVERNMENT  OF  MODERN  STATES 

considerable  proportion  of  the  persons  composing  them  are 
of  a  character  manifestly  disqualifying  them  for  the  exer- 
cise of  political  authority.  Reference  is  made  to  persons 
of  immature  age,  to  those  of  unsound  mind,  and,  in  certain 
cases,  to  members  of  uncivilized  or  but  partly  civilized 
tribes  who  are  included  in  political  groupings  of  persons 
possessing  a  higher  degree  of  intellectual  development. 

In  addition  to  this  class,  regarding  whose  non-participa- 
tion in  the  exercise  of  political  powers  there  can  be  no  ques- 
tion, there  are,  however,  many  other  classes  regarding  the 
propriety  or  advisability  of  whose  active  participation  in 
the  exercise  of  political  authority  grave  differences  of  opin- 
ion may  exist,  a»d  in  fact  always  have  existed,  even  in  those 
communities  which  have  most  unreservedly  accepted  the 
doctrine  of  popular  sovereignty.  Thus  after  more  than  a 
century  of  the  application  of  this  principle,  opinion  in  the 
United  States,  Great  Britain,  France  and  Switzerland,  no 
less  than  in  other  countries  not  having  adopted  this  prin- 
ciple of  popular  sovereignty,  is  still  widely  divided  regard- 
ing the  criteria  that  should  be  applied  in  determining  those 
members  of  the  community  who  should  actually  exercise  the 
sovereign  political  powers  that  are  a  common  possession. 
The  more  important  factors  around  which  this  difference 
of  opinion  has  centered,  and  still  in  large  degree  centers,  are 
those  of  race  or  color,  sex,  age,  ownership  or  occupancy  of 
land,  the  possession  of  property,  the  possession  of  educa- 
tion, the  payment  of  taxes,  political  and  occupational  status, 
citizenship,  and  legal  misconduct  such  as  is  represented  by 
conviction  of  a  serious  crime,  or  bankruptcy,  etc. 

It  needs  but  an  enumeration  of  these  several  points  to 
show  how  serious  and  difficult  is  this  primary  question  of 
determining  in  whose  hands  shall  rest  the  actual  exercise  of 
sovereignty.  In  no  small  part  the  internal  political  history 


THE  ELECTORAL  BRANCH  275 

of  States  resting  upon  the  doctrine  of  popular  sovereignty 
has  been  dominated  by  struggles  having  to  do  with  this 
issue.  In  England  the  great  questions  of  internal  politics 
in  the  nineteenth  century  were  those  relative  to  the  broaden- 
ing of  the  electoral  franchise  and  improving  the  machinery 
through  which  it  was  to  be  exercised.  The  great  reform 
act  of  1832  and  the  franchise  acts  of  1867,  1884  and  1885, 
concerned  themselves  solely  with  this  fundamental  question 
of  the  constitution  of  an  electorate  and  a  determination  of 
how  it  should  discharge  its  duties. 

In  the  United  States,  in  early  days,  acute  discussion  arose 
over  the  question  of  property  and  educational  qualifications 
for  the  franchise.  The  question  of  color  or  race  as  a  de- 
termining factor  in  respect  to  the  possession  of  the  fran- 
chise was  one  of  the  great  issues  arising  out  of  the  exist- 
ence of  the  slavery  of  the  negro  race  in  the  United  States; 
an  issue  which  it  was  sought  to  settle  by  the  adoption  of  the 
Fifteenth  Amendment  to  the  federal  constitution  which  de- 
clared that  "  the  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States 
or  by  any  state  on  account  of  race,  color  or  previous  condi- 
tion of  servitude."  That  this  action  did  not  settle  this 
issue  is,  however,  evidenced  by  the  efforts  on  the  part  of 
many  of  the  Southern  states  to  prevent  any  actual  exercise 
of  the  franchise  by  their  negro  citizens,  first  by  illegal 
means,  and,  in  more  recent  times,  by  such  nominally  legal 
devices  as  the  so-called  "  Grandfather "  clauses  in  their 
franchise  laws. 

At  the  present  time  the  extent  to  which  the  franchise 
shall  be  conferred  upon  women  constitutes  one  of  the  lead- 
ing political  issues  now  before  the  people. 

In  our  insular  dependencies,  the  Philippines  and  Porto 
Rico,  this  has  been  one  of  the  difficult  questions  that  the 


276      THE  GOVERNMENT  OF  MODERN  STATES 

American  authorities  have  had  to  meet  in  organizing  a 
government  for  those  dependencies. 

Determination  of  the  Electorate  a  Matter  of  Expedi- 
ency: The  Electoral  Franchise  Not  a  Natural  Right.— 
It  is  manifestly  impracticable  for  us  here  to  enter  upon  any 
detailed  consideration  of  the  arguments  for  and  against 
the  giving  of  weight  to  any  particular  factor  in  determining 
the  composition  of  the  electorate.  We  will  therefore  have 
to  confine  ourselves  to  one  or  two  general  observations 
which  are  deemed  to  be  of  importance,  in  order  that  the  true 
nature  of  the  problem  may  be  made  clear. 

The  first  of  these  is  that  this  whole  problem  of  the  deter- 
mination of  the  composition  of  the  electorate  should  be 
viewed  strictly  as  a  question  of  practical  expediency.  This 
is  of  importance  since,  wherever  the  demand  is  made  for 
the  extension  of  the  franchise  to  a  new  class,  the  claim  is 
made  that  such  extension  represents  but  the  recognition  of 
a  natural  right.  Certainly  we  see  this  claim  being  con- 
stantly put  forward  by  those  who  are  now  advocating  the 
cause  of  women's  suffrage  in  the  United  States.  We  have 
already  stated  that  in  our  opinion  there  is  no  such  thing  as 
natural  law,  and  consequently  no  such  thing  as  natural 
rights.  Apart  from  this,  it  must  be  apparent  that  the  deter- 
mination of  the  composition  of  the  electorate  is  a  matter  to 
be  adjusted  in  accordance  with  the  particular  conditions  of 
each  case.  Thus  it  is  evident  that,  whether  or  not  the 
suffrage  should  be  conferred  upon  women,  should  be  largely 
influenced  by  the  attitude  taken  by  the  women  themselves 
towards  this  grant;  the  legal  and  social  status  of  the  women 
in  the  community  concerned;  and  the  extent  and  character 
of  their  education  and  general  training.  It  may  well  be 
that  in  one  case  the  grant  would  be  desirable  and  in  another 
represent  a  real  danger  to  the  proper  working  of  the  politi- 


cal  syst 


THE  ELECTORAL  BRANCH  277 


system  of  the  country.  In  like  manner  the  extension  of 
the  franchise  which  might  be  both  feasible  and  desirable  in 
a  settled  community  long  accustomed  to  the  exercise  of  pow- 
ers of  self  government  might  be  fraught  with  grave  dangers 
in  the  case  of  a  more  unsettled  community  or  one  which  had 
not  been  accustomed  to  governing  itself  or  acquiescing  in 
legal  determinations. 

The  Electorate  in  a  Popular  Government  the  Actual 
Possessor  of  Legal  Sovereignty. —  When  a  community 
that  has  adopted  the  principle  of  popular  sovereignty  makes 
provision  for  an  electorate,  it  not  only  takes  the  first  step 
towards  the  establishment  of  a  government,  but  effects  a 
profound  change  in  respect  to  the  location  of  the  real  pow- 
ers of  sovereignty.  Though  as  a  matter  of  theory  sover- 
eign authority  may  be  deemed  to  reside  in  the  entire  body  of 
the  people,  the  actual  power  to  make  use  of  this  authority 
is  exclusively  vested  in  the  hands  of  that  select  portion  of 
the  community  that  has  been  erected  into  an  electorate. 
This  fact,  which  is  one  of  great  significance,  can  best  be 
brought  out  by  making  a  distinction  between  what  may  be 
called  political  sovereignty  and  legal  sovereignty.  With  an 
electorate  established,  while  political  .sovereignty  continues 
to  reside  in  the  whole  body  of  the  people,  legal  sovereignty ; 
that  is,  the  power  to  make  an  actual  legal  use  of  this  author- 
ity, passes  to  the  electorate.  It  might  seem  that,  under 
these  circumstances,  no  object  is  gained  in  continuing  to 
hold  that  the  whole  people  is  the  ultimate  source  of  political 
authority.  This,  however,  is  not  so.  We  have  here  to  do 
with  a  doctrine  or  political  belief.  It  is  of  the  utmost  im- 
portance to  preserve  in  this  manner  the  political  principle 
that  the  government  represents,  and  should  act  for,  the  en- 
tire community,  and,  not  in  the  interests  of  any  particular 
class;  that,  from  this  point  of  view,  the  electorate,  though 


278      THE  GOVERNMENT  OF  MODERN  STATES 

the  possessor  of  absolute  political  authority,  is  in  the  posi- 
tion of  a  trustee  and  is  under  the  obligation  to  exercise  its 
authority  in  such  a  way  as  to  promote  the  general  interests 
of  the  public  as  opposed  to  its  particular  interest.  In  no 
other  way  can  this  political  principle  or  ideal  be  equally  well 
preserved  than  by  keeping  constantly  in  mind  this  fact  that 
no  matter  where  legal  sovereignty  may  reside  final  political 
sovereignty  should  be  deemed  to  rest  in  the  whole  body  of 
the  people. 

The  Right  of  Revolution. —  Nor  is  this  matter  one 
purely  of  academic  or  theoretical  interest.  In  it  is  involved 
a  question  which  at  times  becomes  a  matter  of  overwhelm- 
ing importance;  that,  namely,  of  the  right  of  a  people  to 
revolt  against  their  political  authorities;  We  have  seen 
that,  with  the  constitution  of  an  electorate,  the  actual  exer- 
cise of  sovereign  powers  passes  to  that  body,  the  mass  of 
the  people  back  of  the  electorate  possessing  merely  what 
has  been  designated  as  political  sovereignty.  After  this 
step  has  been  taken  no  change  in  the  form  or  character  of 
the  government  can  be  made  except  by  or  through  this 
body.  It  is  as  though  the  people  had  granted  a  full,  per- 
petual, and  irrevocable  power  to  the  electorate  to  exercise 
for  it  all  of  its  sovereign  powers. 

The  question  is  thus  presented,  and  in  fact  has  repeatedly 
arisen,  as  to  what  action  the  people  are  justified  in  taking  in 
those  cases  where  the  electorate  persists  in  exercising  its 
sovereign  powers  in  a  way  doing  violence  to  the  wishes  of 
the  people.  From  the  strictly  legal  point  of  view  the  latter 
are  powerless.  They  can  of  course  urge  in  the  strongest 
way  possible  upon  the  electorate  the  taking  of  the  action 
desired.  If  the  latter  is  obdurate,  the  people  must  either 
acquiesce  or  take  the  law  into  their  own  hands ;  that  is,  re- 
volt. This  situation  has  usually  arisen  where  an  electorate, 


THE  ELECTORAL  BRANCH  279 

established  upon  a  comparatively  narrow  basis,  persists  in 
using  its  powers  in  its  own  interests  rather  than  those  of  the 
general  public ;  permits  grave  evils  or  inequalities  to  remain 
uncorrected;  or  refuses  to  comply  with  the  demand  on  the 
part  of  the  people  that  they  be  given  a  larger  representation 
in  the  electorate. 

The  English  Reform  Act  of  1832  Forced  by  Threat  of 
Revolution. —  These  are  the  conditions  that  existed  in  Eng- 
land during  the  first  third  of  the  nineteenth  century.  Elec- 
toral conditions  were  almost  inconceivably  bad.  The  electo- 
rate at  that  time  was  composed  of  the  comparatively  few  per- 
sons who  were  freeholders,  that  is,  owners  of  land  accord- 
ing to  a  particular  kind  of  title  in  the  counties  or  rural  dis- 
tricts, and  a  few  persons,  usually  the  members  of  the  self- 
perpetuating  municipal  corporations,  in  boroughs  or  cities. 
There  was  no  approach  to  equity  in  the  districting  of  the 
country  for  electoral  purposes.  Some  districts  included 
less  than  a  dozen  electors  who  were  wholly  under  the  con- 
trol of  a  single  large  landowner  or  member  of  the  nobility. 
There  were  boroughs  so  completely  controlled  by  single  in- 
dividuals, or  a  small  group  of  individuals,  that  their  repre- 
sentation was  treated  as  property  and  was  openly  offered 
for  sale  and  bought  in  the  open  market.  Against  all  efforts 
to  improve  this  condition  of  affairs  the  existing  electorate 
opposed  a  steady  resistance.  Despairing  of  effecting  a 
change  through  legal  means;  that  is,  through  the  action  of 
Parliament,  which  alone  had  legal  authority  to  act,  the  peo- 
ple began  to  resort  to  violent  demonstrations.  Only  after 
it  became  evident  that  these  demonstrations  would  be  pushed 
to  actual  revolution  did  Parliament  give  way  and  place  upon 
the  statute  books  the  great  reform  act  of  1832,  the  first  of 
a  long  series  of  acts  by  which  the  electorate  has  been  stead- 
ily broadened  and  its  machinery  of  operation  so  improved 


a8o      THE  GOVERNMENT  OF  MODERN  STATES 

that  at  the  present  time  the  actual  exercise  of  political  pow- 
ers has  been  placed  as  completely  in  the  hands  of  the  people 
as  in  almost  any  other  country  in  the  world.  In  the  forc- 
ing of  -the  passage  of  the  Reform  Act  of  1832,  we  have 
therefore  an  example  of  the  possessors  of  political  sover- 
eignty, dissatisfied  with  the  action  of  their  representatives, 
the  possessors  of  legal  sovereignty,  resorting  to  the  only 
means  remaining  to  it  to  make  its  will  prevail,  that  of  revo- 
lution. 

In  this  connection  it  is  of  interest  to  note  that  the  mili- 
tant suffragists  in  England  are  appealing  to  this  same  right 
of  revolution  as  the  only  means  in  their  hands,  after  all 
attempts  at  moral  suasion  have  failed,  to  enforce  their  de- 
mands upon  a  recalcitrant  electorate. 

The  Right  of  Revolution  as  Illustrated  in  Dorr's  Re- 
bellion in  Rhode  Island  in  1841. —  Much  the  best  illustra- 
tion of  the  right  of  the  possessor  of  political  sovereignty  to 
rise  in  revolt  against  the  possessor  of  legal  sovereignty  is, 
however,  furnished  by  an  event  which  occurred  in  our  own 
country.  Though,  from  the  time  of  the  Declaration  of  In- 
dependence, the  people  of  the  United  States  have  been  firm 
adherents  to  the  doctrine  of  Popular  Government,  they  were, 
during  the  early  years  of  our  history  as  a  nation,  by  no 
means  persuaded  that  the  electorate  for  the  exercise  of  the 
power  of  sovereignty  should  have  the  broad  basis  that  it 
now  has.  A  study  of  the  history  of  the  manner  in  which 
the  people  of  the  United  States  have  solved  this  problem  of 
the  constitution  of  an  electorate  shows  that  most  of  the 
states  started  with  an  electorate  resting  upon  a  compara- 
tively narrow  basis,  one  in  which  the  right  to  vote  was 
hedged  in  by  a  large  number  of  requirements,  such  as  the 
ownership  of  property,  ability  to  read  and  write,  and,  in 
some  cases,  even  a  profession  of  faith,  or  membership  in  a 


THE  ELECTORAL  BRANCH  281 

religious  congregation,  and  have  progressively  broadened 
the  franchise  in  response  to  public  opinion  until  the  present 
condition  of  manhood  suffrage  for  the  most  part  prevails. 

In  almost  all  cases  the  existing  electorate  has  bowed  to 
the  demand  for  a  broadening  of  the  franchise  when  it  be- 
came clearly  apparent  that  such  demands  represented  the 
genuine  will  of  the  people.  A  notable  exception  to  this, 
however,  occurred  in  Rhode  Island  in  1841.  Under  the 
provisions  of  its  early  constitution,  adopted  at  a  time  when 
it  was  believed  that  the  right  of  suffrage  should  be  rigidly 
restricted,  the  electorate  was  so  restricted  that  the  power 
of  voting  was  vested  in  the  hands  of  a  comparatively  small 
number  of  persons.  These  persons  thus  constituted,  in 
effect,  a  political  oligarchy.  With  the  rise  of  democratic 
ideas,  demands  for  the  broadening  of  the  franchise  were 
put  forth  with  ever  increasing  strength.  These  demands 
the  existing  electorate  persisted  in  ignoring.  Whether  be- 
cause they  sincerely  believed  that  an  extension  of  the  fran- 
chise was  unwise,  or  because  they  were  unwilling  to  give  up 
the  monopoly  of  political  power  that  they  possessed,  they 
steadily  refused  to  acquiesce  in  the  changes  demanded.  As 
the  possessor  of  legal  sovereignty  their  position  was  legally 
unassailable. 

To  meet  this  situation  the  people  in  1841  met  in  mass 
meetings,  effected  an  organization  and  took  the  necessary 
steps  for  the  assembling  of  a  convention,  the  members  of 
which  should  be  elected  by  manhood  suffrage,  for  the  fram- 
ing of  a  new  constitution.  This  election  was  duly  held; 
the  persons  elected  came  together,  organized  as  a  constitu- 
tional convention,  framed  a  constitution  and  ordered  it  sub- 
mitted to  the  people  for  approval  at  a  special  election  to  be 
held  for  that  purpose.  This  election  was  in  turn  held  and 
the  constitution  so  framed  was  adopted  by  a  clear  majority. 


282      THE  GOVERNMENT  OF  MODERN  STATES 

The  members  of  the  constitutional  convention  thereupon  re- 
assembled, and  adopted  a  resolution  which  declared  that : 

Whereas,  by  return  of  the  votes  upon  the  constitution,  it  satis- 
factorily appears  that  the  citizens  of  this  state,  in  their  original 
sovereign  capacity  have  ratified  and  adopted  said  constitution  by  a 
large  majority;  and  the  will  of  the  people  thus  decisively  known 
ought  to  be  implicitly  obeyed  and  faithfully  executed ;  we  do  there- 
fore resolve  and  declare  that  said  constitution  rightfully  ought  to 
be,  and  is,  paramount  law  and  constitution  of  the  State  of  Rhode 
Island  and  Providence  Plantations;  and  we  further  resolve  and 
declare  for  ourselves  and  in  behalf  of  the  people  whom  we  repre- 
sent that  we  will  establish  said  constitution  and  sustain  and  defend 
the  same  by  all  necessary  means. 

Under  this  constitution  an  election  was  held  at  which  a 
man  by  the  name  of  Dorr  was  elected  as  Governor  and  other 
offices  were  filled. 

In  the  meantime  the  existing  government,  resting  upon 
the  old  constitution  and  the  narrow  electorate,  remained  in 
existence  and  continued  to  discharge  the  functions  of  gov- 
ernment. The  result  was  that  there  were  in  existence  in 
Rhode  Island  at  the  same  time  two  governments,  each  claim- 
ing to  be  the  legal  government  of  the  state. 

Efforts  were  then  made  by  the  new  government  to  assume 
control  of  the  government  departments,  and  the  conduct  of 
governmental  affairs.  The  old  government  appealed  to  the 
President  of  the  United  States  to  assist  it  in  resisting  this 
effort,  basing  its  appeal  upon  the  provision  of  the  federal 
constitution  l  that  "  the  United  States  shall  guarantee  to 
every  state  in  this  Union  a  republican  form  of  government, 
and  shall  protect  each  of  them  against  invasion;  and,  on 
application  of  the  legislature  or  of  the  executive  (where  the 
legislature  cannot  be  convened)  against  domestic  violence." 

1  Art.  IV,  Sec.  4. 


THE  ELECTORAL  BRANCH  283 

The  President  acceded  to  this  request  and  took  steps  to  give 
the  aid  requested.  Whereupon  the  new  government  col- 
lapsed. Efforts  were  subsequently  made  through  an  ap- 
peal to  the  Supreme  Court  of  the  United  States  to  have  this 
action  reversed,  and  the  new  government  declared  to  be  the 
legal  government  of  the  state.  This  the  Supreme  Court 
refused  to  do  in  a  decision  handed  down  in  1845. 1  In  tms 
decision  the  Supreme  Court  refused  to  decide  directly  which 
of  the  two  governments  was  entitled  to  be  deemed  the  legal 
government.  It  dismissed  the  action  upon  the  ground  that 
the  enforcement  of  the  clause  of  the  federal  constitution 
guaranteeing  a  republican  form  of  government  to  each  of 
the  states  was  a  matter  resting  with  the  President,  and  that 
it  was  improper  for  the  courts  to  intervene  in  respect  to  the 
exercise  of  his  discretion  in  relation  thereto.  The  elec- 
torate constituting  the  source  of  legal  authority  of  the  exist- 
ing government  had,  however,  learned  its  lesson.  It  ac- 
cordingly yielded  in  large  part  to  the  demands  of  the  people 
which  had  been  so  energetically  pressed,  and  the  incident 
was  closed. 

We  have  given  in  some  detail  the  incidents  connected 
with  this  remarkable  occurrence,  which  is  known  in  history 
as  Dorr's  Rebellion,  £ince  it  illustrates  in  a  remarkably  con- 
crete way  the  relation  that  exists  between  the  politically 
sovereign  people  and  the  legally  sovereign  electorate,  and 
the  trouble  that  may  arise  where  the  two  are  not  in  accord. 
It  is  of  interest  to  note  that  the  convention  which  passed 
the  new  constitution,  in  declaring  that  document  to  be  the 
fundamental  political  law  of  the  land,  based  its  declaration 
upon  the  statement  that  this  document  represented  the  act 
of  the  citizens  of  the  state,  acting  in  their  original  sover- 
eign capacity.  Daniel  Webster,  who  represented  the  old 

1  Luther  v.  Borden,  7  How.  I. 


284      THE  GOVERNMENT  OF  MODERN  STATES 

government,  in  the  case  carried  to  the  Supreme  Court, 
argued  that  American  law  knew  no  such  thing  as  mass  ac- 
tion, that  no  act  was  legal  that  was  not  performed  in  com- 
pliance with  the  existing  law  of  the  land,  and  that,  therefore, 
the  constitution  framed  in  total  disregard  of  such  law,  was 
a  nullity. 

In  this  particular  case  the  issue  was  not  carried  to  the 
limits  of  armed  revolution.  The  occurrence  nevertheless 
furnishes  a  perfect  illustration  that  cases  may  easily  arise 
where  a  sovereign  people  may  be  morally,  if  not  legally, 
justified  in  resorting  to  revolutionary  means  as  the  only 
means  in  their  power  of  overthrowing  a  tyranny,  and  in 
making  their  sovereign  will  prevail.  It  need  hardly  be 
said,  however,  that  resort  -to  revolution  is  only  justified 
when  the  grievance  is  one  of  real  and  great  importance,  and 
when  all  means  of  proceeding  in  a  strictly  legal  manner 
have  been  exhausted. 

The  Problem  of  Electoral  Procedure.—  With  the  com- 
position of  the  electorate  determined,  there  is  then  pre- 
sented the  problem  of  devising  the  means  through  which 
this  body  may  act.  This  involves  doing  three  things :  one, 
the  adoption  of  a  system  for  the  determination  of  those 
members  of  the  community  who  have  the  qualifications  re- 
quired of  electors;  second,  the  provision  of  means  through 
which  the  electors  will  act,  that  is,  cast  their  votes  at  elec- 
tions; and,  third,  the  provision  of  means  for  the  counting 
of  the  votes  and  the  authoritative  declaration  of  the  results. 

Two  methods  are  open  for  determining  the  electoral  qual- 
ifications of  voters ;  that  of  having  persons  claiming  to  have 
such  qualifications  prove  their  claims  at  the  time  that  they 
tender  their  votes;  and  that  of  having  these  claims  pre- 
sented and  passed  upon  some  time  prior  to  when  the  voting 
takes  place.  The  objection  to  the  first  method  is  that  it  is 


THE  ELECTORAL  BRANCH  285 

calculated  to  foment  disorder  at  a  time  when  the  mainte- 
nance of  order  is  at  best  a  difficult  matter,  and  that  it 
greatly  delays  the  work  of  voting.  There  are  in  fact  many 
cases  where  a  proper  decision  cannot  be  summarily  made 
since  the  production  of  proof  may  be  required  to  establish 
or  reject  the  claim.  Due  to  these  objections  most  countries 
have  adopted  the  second  method.  This  means  that  there  is 
established  what  is  known  as  a  registration  system  com- 
posed of  boards  or  other  bodies  before  whom  persons  claim- 
ing the  right 'to  vote  appear  some  time  before  the  election 
and  establish  their  right  to  vote.  On  the  basis  of  this,  reg- 
istration lists  of  qualified  voters  are  made  up  for  use  at 
the  time  of  the  election.  These  lists  serve  the  double  pur- 
pose of  making  known  who  are  entitled  to  vote,  and  of  pre- 
venting duplicate  voting  by  having  each  name  checked  as 
its  owner  casts  his  ballot. 

Though  this  system  would  seem  to  be  a  simple  one  great 
difficulty  is  encountered  in  its  practical  operation.  This 
arises,  partly  from  the  fact  that  the  composition  of  the 
electorate  of  any  district  is  constantly  changing  through 
persons  attaining  the  age  or  other  qualifications  entitling 
them  to  become  voters,  death,  and  removal  from  one  dis- 
trict to  another;  partly  from  the  difficulty  of  securing  reg- 
istration boards  that  will  act  in  a  non-partisan  and  honest 
manner;  and  partly  from  the  difficulty  in  detecting  and 
preventing  deliberate  fraud.  In  the  United  States  the 
fraudulent- registration  of  voters  has  been  widely  practiced 
in  the  past.  At  the  present  time  conditions  are  much  im- 
proved over  what  they  were,  though  much  still  remains  to 
make  them  thoroughly  satisfactory. 

The  second  phase  of  electoral  procedure,  that  of  the  ac- 
tual casting  of  votes,  offers  still  wider  opportunities  for 
variation  in  practice.  In  England  until  a  comparatively 


286      THE  GOVERNMENT  OF  MODERN  STATES 

recent  day,  and  in  our  own  country  in  colonial  days,  and  in 
the  early  years  of  the  Republic,  voting  took  place  by  each 
voter  appearing  openly  before  the  election  board  or  other 
officer  charged  with  the  duty  of  conducting  the  election  and 
disclosing  his  vote.  This  system  had  the  serious  objection 
that  under  it  bribery,  that  is,  the  purchase  of  votes,  undue 
influence  and  even  intimidation  were  easy.  A  candidate  or 
persons  acting  in  his  behalf,  who  had  paid  persons  to  vote 
a  certain  way,  and  employers  or  others  having  persons  de- 
pendent upon  them,  could  readily  determine  how  the  persons 
so  bribed  and  subject  to  their  control  voted. 

This  condition  led  to  the  demand  for  the  secret  ballot. 
To  secure  such  secrecy  there  was  established  the  system  of 
written  or  printed  ballots,  which  were  dropped  in  an  urn  or 
other  receptacle.  At  first  separate  ballots  were  employed 
for  the  several  candidates  being  voted  for.  It  was  found  in 
practice,  however,  that  under  this  system  it  was  still  pos- 
sible to  determine  how  electors  voted  and  that  fraud  was 
possible  through  the  casting  of  more  than  one  ballot. 
These  evils  were  overcome  through  the  adoption  of  what  is 
known  as  the  Australian  ballot  system  from  the  country 
where  it  was  first  used.  This  system  consists  in  the  use  of 
a  single  ballot,  furnished  by  the  government  instead  of  by 
the  individual  candidates,  as  was  the  case  under  the  old 
system,  bearing  the  names  of  all  candidates,  the  voter  indi- 
cating his  choice  by  checking  the  name  voted  for.  To  in- 
sure secrecy  separate  booths  are  provided  at  each  election 
post  into  which  the  voters  go  to  mark  their  ballots.  When 
marked,  they  are  folded  so  that  the  manner  in  which  they 
are  marked  is  concealed  and  are  dropped  in  the  voting  box. 
This  system  has  given  thoroughly  satisfactory  results  and 
is  now  the  one  almost  universally  in  use  in  the  United 
States. 


THE  ELECTORAL  BRANCH  287 

The  work  of  counting  the  votes  and  declaring  the  results 
is  the  third  phase  of  a  system  of  electoral  procedure.  The 
counting  is  done  in  the  first  instance  by  the  boards  con- 
ducting the  elections  and  the  results  are  forwarded  to  some 
central  authority  for  verification  and  declaration  of  the  re- 
sults. We  have  seen  that  in  the  case  of  elections  for  Presi- 
dent and  Vice-President  of  the  United  States  the  central 
authority  or  canvassing  board,  to  use  the  technical  term,  is 
Congress. 

In  the  United  States,  and  to  a  considerable  extent  in  other 
countries,  the  principle  is  firmly  established  that  legislative 
bodies  shall  be  the  final  judges  as  to  the  qualifications  of 
their  members.  Notwithstanding  the  care  taken  to  prevent 
fraud  many  cases  occur  where  fraud  is  practiced,  or  claims 
that  it  is  practiced,  are  set  up.  This  leads  to  so-called  con- 
tested elections.  These  contests  are  heard  by  Congress  and 
our  state  legislatures  sitting  practically  as  courts.  Testi- 
mony is  taken,  arguments  of  candidates  or  their  attorneys 
are  heard  and  decisions  rendered.  Unfortunately  these 
bodies  in  rendering  their  decisions  are  too  often  guided  by 
political  considerations  rather  than  the  evidence  produced. 
In  England  this  situation  has  been  met  by  providing  that  all 
election  contests  shall  be  heard  and  decided  in  the  first  in- 
stance by  judicial  officers  and  the  case  rarely  if  ever  occurs 
where  the  decision  so  rendered  is  not  accepted.  There  is  a 
strong  demand  that  the  same  system  should  be  adopted  in 
our  own  country.  That  it  would  be  a  great  improvement 
over  the  existing  system  can  hardly  be  doubted. 

In  the  foregoing  we  have  done  little  more  than  analyze 
the  several  operations  involved  in  providing  the  means  by 
which  the  electorate  may  perform  its  functions  and  the  more 
important  considerations  to  which  they  give  rise.  Though 
present  conditions  represent  a  great  improvement  over 


288      THE  GOVERNMENT  OF  MODERN  STATES 

those  formerly  existing  much  yet  remains  to  be  done  to  se- 
cure a  system  under  which  an  independent  and  honest  ex- 
pression of  opinion  may  be  had  from  voters.  Bribery,  in- 
timidation, fraud,  and  improper  expenditure  of  money  to 
influence  voters  are  still  practiced.  In  the  attempt  to  con- 
trol these,  Congress  and  many  of  our  state  legislatures 
have  passed  what  are  known  as  corrupt  practices  acts,  the 
purpose  of  which  is  to  define  what  practices  shall  be  deemed 
to  be  proper  and  what  illegal,  to  provide  penalties  for  the 
infraction  of  the  latter,  and  means  for  enforcing  them. 
Especially  have  these  acts  sought  to  put  a  limit  upon  the 
amount  of  money  that  may  be  spent  by,  or  on  behalf  of, 
candidates  and  to  determine  the  purposes  for  which  such 
money  may  or  may  not  be  spent.  They  have  also  very  gen- 
erally provided  for  the  publication  of  accounts  by  candi- 
dates showing  what  money  had  been  raised  on  their  behalf, 
who  contributed  this  money  and  for  what  purpose  it  was 
spent.  In  England  similar  acts  have  been  passed  which  are 
equally  far-reaching  in  character. 

The  problem  of  the  functions  of  the  electoral  branch; 
that  is,  the  part  that  it  should  play  in  determining  what  shall 
be  the  policies  of  the  government,  has  already  been  consid- 
ered in  our  discussion  of  the  two  types  of  Popular  Govern- 
ment, Democracy  and  Representative  Government,  and  will 
receive  further  consideration  in  our  chapter  dealing  with 
the  role  of  political  parties  in  modern  governments. 


CHAPTER  XIII 

THE   LEGISLATIVE   BRANCH 

But  a  moment's  reflection  show's  that,  in  considering  the 
several  branches  of  government  proper,  first  attention  should 
be  given  to  the  legislative  branch.  This  for  a  number  of 
reasons.  In  the  first  place,  as  will  shortly  appear  in  our 
analysis  of  the  functions  of  this  branch,  the  legislature  is 
preeminently  the  organ  made  use  of  to  complete  the  work 
of  determining  the  character  of  government  that  shall  be 
established  and  the  manner  in  which  governmental  powers 
shall  be  exercised.  The  legislature  takes  up  this  work 
where  the  electorate,  in  the  exercise  of  its  constituent  au- 
thority, leaves  off.  In  a  Unitary  Government,  it  is  the 
organ  which  determines  how  governmental  powers  shall  be 
distributed  territorially.  In  a  Government  of  Union  of 
Powers  it  is  the  organ  which  determines  how  governmental 
powers  shall  be  distributed  functionally.  In  some  govern- 
ments of  a  purely  representative  type,  such  as  that  of  Eng- 
land, it  exercises  all  the  powers  possessed  by  the  electorate 
itself  and,  acting  as  the  latter's  agent,  determines  all  the 
details  of  governmental  organization  and  procedure.  In 
practically  all  cases,  it  is  deemed  to  be  the  organ  of  govern- 
ment which  most  directly  and  authoritatively  represents 
and  acts  for  the  electorate.  It,  finally,  is  the  organ  most 
usually  employed  in  determining  when  a  new  appeal  shall 
be  made  to  the  electorate  to  exercise  its  constituent  powers 
for  the  purpose  of  determining  what  modification,  if  any, 


290      THE  GOVERNMENT  OF  MODERN  STATES 

shall  be  made  in  the  fundamental  features  of  the  political 
system  as  in  force. 

In  the  second  place,  in  most,  if  not  all,  Representative 
Governments,  the  legislature  is  the  organ  through  which 
the  electorate,  after  a  governmental  system  has  once  been 
established,  currently  makes  known  its  will  in  respect  to 
the  policies  that  should  be  followed  by  such  government. 
In  those  governments  in  which  the  chief  executive  and  the 
judges  are  not  elected  by  the  people,  it  is  the  only  organ 
through  which  this  public  will  is  authoritatively  expressed. 

Finally,  it  is  the  organ  which,  in  the  practical  operation 
of  government,  determines  for  the  most  part  the  action  to 
be  taken.  In  large  part  the  other  organs  have  but  the 
function  of  putting  into  execution  the  policies  thus  deter- 
mined upon.  The  only  important  exception  to  this  is  the 
determination  of  foreign  policies  and  the  conduct  of  rela- 
tions with  other  governments  which,  for  reasons  which  will 
hereafter  appear,  are  usually  in  the  hands  of  the  chief  execu- 
tive. 

Analysis  of  the  Problem. —  Following  the  principle  of 
procedure  employed  throughout  this  work,  our  first  effort 
will  be  directed  to  the  attempt  to  analyze  the  problems  pre- 
sented in  organizing,  determining  the  procedure,  and  ac- 
tually conducting  the  work  falling  upon  a  legislative  body. 
Only  as  we  start  with  a  clear  idea  of  the  several  elements  or 
factors  that  are  involved  in  a  complicated  problem  can  we 
hope  to  reach  any  thorough  understanding  of  it  or  to  con- 
sider with  advantage  the  steps  that  must  be  taken  if  a  sat- 
isfactory system  is  to  be  had.  Employing  this  method,  ex- 
amination shows  that  the  problem  of  organizing  and  operat- 
ing the  legislative  branch  of  a  government  can  be  resolved 
into  the  following  distinct  elements : 

i.  Determination  of  its  functions  or  duties. 


THE  LEGISLATIVE  BRANCH  291 

2.  Determination  of  its  structural  character. 

3.  Determination  of  its  composition  and  method  of  se- 

lecting its  members. 

4.  Determination  of  its  life  or  duration. 

5.  Determination  of  its  powers  and  privileges. 

6.  Determination  of  its  methods  of  procedure. 

It  is  our  purpose  to  consider  briefly  the  nature  of  each  of 
these  specific  tasks  in  turn. 

Determination  of  the  Functions  or  Duties  of  the  Leg- 
islative Branch. —  In  respect  to  no  branch  of  government  is 
there  a  greater  misconception  regarding  the  real  character 
of  its  duties  than  exists  in  the  case  of  the  legislative  branch 
of  a  modern  government.  In  the  popular  mind  this  branch 
has  but  one  duty  to  perform,  that  of  the  enactment  of  laws. 
That  this  is  one  of  its  great  duties  no  one  will  question. 
If,  however,  we  examine  closely  the  part  played  by  a  legis- 
lative assembly  in  the  actual  conduct  of  the  affairs  of  gov- 
ernment, it  will  be  found  that  its  activities  extend  far  beyond 
this  field.  Analysis  will  show  that  a  modern  legislature, 
such  as  the  Congress  of  the  United  States,  performs  at 
least  seven  functions  that  may  be  clearly  distinguished; 
those,  namely,  of  acting  as : 

1.  A  constituent  assembly  or  constitutional  convention. 

2.  A  canvassing  board  and  electoral  colleger 

3.  An  organ  of  public  opinion. 

4.  A  board  of  directors  for  the  government  corporation. 

5.  An  organ  of  legislation. 

6.  An  executive  council — 

7.  A  high  court  of  justice. 

Congress  as  a  Constituent  Assembly  or  Constitutional 
Convention. —  In  our  consideration  of  the  general  problem 
of  the  adoption,  revision  and  amendment  of  constitutions, 
we  have  seen  that  the  electorate  in  a  Representative  Gov- 


292      THE  GOVERNMENT  OF  MODERN  STATES 

ernment  can  proceed  in  three  ways  in  making  provision  for 
the  means  by  which  its  constitution  may  be  modified.  It 
can :  ( i )  retain  in  its  own  hands  the  work  of  initiating  and 
adopting  constitutional  changes ;  or  (2)  it  can  vest  the  taking 
of  such  action  in  the  hands  of  the  government;  or  (3)  it 
can  provide  for  the  participation  of  both  itself  and  its  gov- 
ernment in  such  work.  Of  these  three  methods  the  Ameri- 
can people  have  chosen  the  second.  The  federal  constitu- 
tion thus  provides  two  ways  in  which  its  provisions  may  be 
altered,  both  of  which  require  that  the  work  shall  be  un- 
dertaken at  the  instance  of  the  government.  The  first 
is  that  Congress  may  at  any  time  by  a  two-thirds  vote  of 
both  of  its  houses,  propose  specific  amendments.  The  sec- 
ond is  that  it  shall  provide  for  the  assembling  of  a  special 
convention  to  consider  the  general  revision  of  the  constitu- 
tion whenever  two-thirds  of  the  states  so  request.  In  both 
cases  the  amendments  so  formulated  must  be  adopted  or 
ratified  by  the  legislatures  of  at  least  three-fourths  of  the 
states  before  they  become  effective. 

Manifestly  we  have  here  to  do  with  a  duty  of  Congress 
that  should  be  clearly  distinguished  from  that  of  legisla- 
tion, strictly  speaking.  This  duty  is  one  which  has  been 
very  much  in  evidence  in  recent  years.  Proceeding  under 
the  first  method  the  constitution  has  during  the  past  few 
years  been  amended  in  important  respects.  By  an  amend- 
ment adopted  February  25,  1913,  power  was  conferred  upon 
Congress  to  levy  and  collect  taxes  upon  incomes  without 
having  to  have  such  taxes  apportioned  among  the  several 
states.  It  is  under  this  provision  that  Congress  has  been 
enabled  to  provide  for  the  levying  of  the  present  system  of 
income  taxes  the  proceeds  of  which  constitute  at  the  pres- 
ent time  such  a  large  part  of  the  national  income.  One  of 
the  prime  motives  for  the  passage  of  this  amendment  was 


THE  LEGISLATIVE  BRANCH  293 

to  strengthen  the  financial  powers  of  the  national  govern- 
ment in  case  of  war.  Its  adoption  must  thus  be  classed 
among  the  important  measures  of  military  preparedness  of 
our  country.  By  an  amendment  adopted  May  31,  1913,  the 
method  of  electing  Senators  was  changed  from  that  of  their 
selection  by  the  states  in  such  manner  as  they  saw  fit  to 
that  of  direct  election  by  the  people.  At  the  present  time  an 
amendment  providing  for  the  establishment  of  prohibition  in 
respect  to  intoxicating  liquors  has  been  proposed  by  Con- 
gress and  is  pending  ratification  by  the  states,  while  another 
amendment  providing  for  woman  suffrage  is  now  under  con- 
sideration by  Congress.  *"*k  M«*CIW)  r*t,/.-4 

Congress  as  a  Canvassing  Board  and  Electoral  Col- 
lege.—  Another  specific  duty  of  Congress  is  that  of  acting 
as  a  board  to  canvass  the  vote  cast  in  the  electoral  college  for 
President  and  Vice  President,  and  declare  the  results;  and, 
in  case  of  the  failure  of  such  body  to  make  a  choice, 
that  one  of  its  chambers,  the  House  of  Representatives, 
shall  choose  by  ballot  a  President  from  among  the  three 
candidates  having  received  the  largest  vote  in  the  electoral 
college  and  the  other  chamber,  the  Senate,  shall  choose  a 
Vice  President  from  among  the  two  candidates  receiving 
the  largest  vote.  In  making  the  choice  of  President  the  vote 
is  by  states,  each  state  casting  a  single  vote. 

Normally  this  function  is  of  but  a  nominal  character. 
On  several  occasions,  however,  it  has  been  one  of  great  im- 
portance. This  was  the  case  in  1801  and  1825,  when  the 
electoral  college  failed  to  make  a  choice  of  President  and 
Vice  President  and  the  election  of  these  officers  was  thrown 
into  the  House  of  Representatives;  and  in  1876,  when  it  had 
to  decide  whether  Mr.  Hayes  or  Mr.  Tilden  had  been  duly 
elected.  The  latter  issue  was  finally  decided  through  refer- 
ring the  matter  to  a  specially  constituted  electoral  commis- 


294      THE  GOVERNMENT  OF  MODERN  STATES 

sion  composed  of  five  Senators,  five  Representatives  and  five 
Justices  of  the  Supreme  Court  of  the  United  States. 

Congress  as  an  Organ  of  Public  Opinion. —  Popular 
Government  has  been  defined  as  a  government  of  public 
opinion.  In  such  a  government  it  is  imperative  therefore 
that  means  shall  be  provided  by  which  such  opinion  may, 
not  only  be  formulated,  but  authoritatively  expressed.  At 
the  present  time  public  opinion  is  formed  and  made  manifest 
through  a  number  of  agencies.  Of  these  mention  may 
specially  be  made  of  the  press  and  political  parties.  The 
function  of  the  latter  as  the  expounder  of  public  opinion 
will  be  examined  in  our  chapter  on  the  role  of  political 
parties  in  modern  governments.  No  one  of  these  agencies, 
however,  has  the  power  authoritatively  to  declare  the  public 
will.  This  is  the  function  of  Congress,  and  it  is  one  of 
its  most  important  functions. 

The  importance  of  distinguishing  between  this  function 
and  that  of  legislation  may  be  seen  if  we  study  the  history 
of  parliamentary  institutions,  or  examine  the  real  character 
of  many  legislative  bodies  as  they  exist  at  the  present  time. 
Thus  if  we  examine  the  history  of  the  rise  and  development 
of  the  British  Parliament,  the  mother  of  all  modern  legis- 
lative bodies,  it  will  be  found  that  originally  the  primary,  if 
not  sole,  function  of  that  body  was  that  of  furnishing  an 
organ  through  which  public  opinion,  or  at  least  the  opinion 
of  that  part  of  the  community  to  which  a  participation 
in  the  conduct  of  public  affairs  was  accorded,  might  be 
secured.  The  British  Parliament  in  its  early  days  was  in 
effect  nothing  more  than  the  grand  assize  of  the  nation  in 
which  matters  of  public  interest  were  discussed  and  expres- 
sion given  to  opinions  regarding  policies  that  should  be 
pursued.  As  President  Wilson  has  pointed  out  in  his  ex- 
ceptionally acute  analysis  of  our  constitutional  system : 


THE  LEGISLATIVE  BRANCH  295 

Not  until  after  the  Revolution  of  1688  was  Parliament  looked 
upon  as  modern  Englishmen  look  upon  it,  as  chiefly  interesting  be- 
cause of  the  laws  it  could  make.  .  .  .  For  at  least  four  of  the  six 
hundreds  years  during  which  it  has  been  an  instrument  of  consti- 
tutional government,  it  was  looked  upon  merely  as  the  "  grand  as- 
size," the  great  session,  of  the  nation.  .  .  .  They  (the  Parliament) 
were  meant  to  be  talking  shops.  The  name  "  Parliament "  is  no  ac- 
cidental indication  of  their  function.  ...  It  was  as  far  as  possible 
from  the  original  purpose  of  representative  assemblies  that  they 
should  conduct  government.1 

This  distinction  moreover  is  not  merely  one  of  historical 
interest.  If  we  study  the  practical  workings  of  the  two 
greatest  parliamentary  bodies  now  in  existence,  the  English 
Parliament  and  the  Congress  of  the  United  States,  it  will 
be  found  that  there  is  a  strong  and  steady  tendency  to- 
wards the  vesting  of  actual  responsibility  for  the  initiation 
and  determination  of  the  character  of  new  legislation  in 
the  hands  of  the  executive  and  of  confining  the  participa- 
tion of  legislative  bodies  to  that  of  passing  upon  proposals 
so  brought  before  it.  In  England  this  movement  has  gone 
so  far  that  it  can  almost  be  said  that  Parliament  has  ceased 
to  be  a  legislative  body,  practically  speaking,  and  has  re- 
verted to  its  original  function  of  serving  as  an  organ  of 
public  opinion.  All  legislation  of  importance  is  now 
drafted  by  the  ministry  in  power  and  is  put  through  that 
body  without  change  except  as  the  ministry  may  acquiesce 
in  such  modification.  The  inability  of  the  House  to  modify 
ministerial  proposals  arises  from  the  fact  that  the  ministry 
in  power  necessarily  has  a  majority  in  the  House  and  this, 
majority,  under  the  practice  now  firmly  established,  is  prac- 
tically pledged  in  advance  to  make  its  action  conform  in 
all  respects  to  such  ministry.  The  power  of  the  individual 
member  to  introduce  measures  and  secure  their  passage  has 

1 "  Constitutional  Government  in  the  United  States,"  1908,  pp.  10-11. 


296      THE  GOVERNMENT  OF  MODERN  STATES 

steadily  diminished  until  it  no  longer  has  any  significance  in 
determining  the  character  of  legislation  that  shall  be  en- 
acted. 

In  the  United  States  we  are  still  in  the  midst  of  a  simi- 
lar evolution.  More  and  more  the  people  are  looking  to 
the  President  in  the  case  of  the  national  government  and  to 
the  Governors,  in  the  governments  of  the  states,  to  formu- 
late and  secure  the  enactment  of  all  acts  of  general  impor- 
tance. There  can  be  no  doubt  moreover  that  this  move- 
ment is  one  which  has  generally  commended  itself  to  the 
populations  of  both  countries. 

In  Germany  a  similar  condition  exists,  not  merely  as  a 
matter  of  practice,  but  of  law.  It  is  hardly  going  too  far 
•^  to  say  that  almost  the  sole  function  of  the  Imperial  Reichs- 
tag  is  to  act  as  an  organ  of  public  opinion.  All  measures 
of  importance  originate  in  the  Upper  House,  the  Bundes- 
rath,  which  body  acts  upon  direct  orders  emanating  from 
the  executive  branch  of  the  governments  of  the  constituent 
states ;  and  the  lower  house,  the  Reichstag,  has  the  function 
merely  of  considering  the  measures  thus  coming  to  it  from 
the  upper  house. 

It  is  furthermore  evident  that  the  distinction  we  are  here, 
making  has  also 'great  importance  in  formulating  policies 
and  programs  for  the  government  of  dependent  territory. 
There  are  many  cases  where  it  would  be  unwise  at  once  to 
confer  legislative  powers  upon  a  popularly  elected  assembly, 
but  where  the  establishment  of  an  assembly  to  act  as  an  or- 
gan of  public  opinion  would  be  both  wise  and  the  most 
effective  means  of  training  a  population  in  the  art  of  gov- 
ernment and  of  preparing  it  for  the  time  when  full  powers 
of  self-government  might  be  conferred  upon  it. 

Finally,  it  is  of  the  utmost  importance  that  this  distinc- 
tion should  be  kept  in  mind  by  those  countries  which  are 


THE  LEGISLATIVE  BRANCH  297 

now  for  the  first  time  seeking  to  establish  Popular  Govern- 
ment. 

The  leading  feature  of  such  attempts  in  all  cases  is  the 
creation  of  a  National  Assembly.  In  each  case  there  is 
presented  the  fundamental  question  of  determining  the 
nature  of  the  duties  or  powers  that  shall  be  conferred  upon 
that  body.  It  was  the  fortune  of  the  author  to  have  par- 
ticipated in  attempts  to  work  out  this  problem  in  a  con- 
crete case.  From  October  i,  1914,  to  June  i,  1916,  he 
served  as  legal  adviser  to  the  Chinese  Government,  with 
the  special  duty  of  giving  advice  regarding  the  framing  of 
a  permanent  constitution  to  take  the  place  of  the  provis- 
ional constitution  then  in  force.  Of  the  various  questions 
presented  to  him  for  consideration  and  advice  none  was 
more  important  than  the  one  we  are  now  considering.  It 
arose  in  connection  with  both  the  establishment  and  defini- 
tion of  powers  of  a  National  Assembly  for  the  country  as  a 
whole,  and  the  establishment  and  definition  of  powers  of 
popular  assemblies  for  the  individual  provinces  into  which 
China  is  divided.  This  led  the  author  to  seek  to  determine 
why  it  was  that  in  practically  all  cases  the  first  attempts 
to  create  popular  assemblies  resulted  in  failures;  that,  with 
almost  no  exception,  these  bodies  proved  to  be  incom- 
petent bodies  and  that  their  establishment  was  speedily 
followed  by  disorganization,  disorder  and  ultimately  their 
dissolution  or  a  great  curtailment  of  their  powers. 

The  explanation  of  this  the  author  believed  to  lie  in  the 
failure  on  the  part  of  those  responsible  for  the  establish- 
ment of  these  bodies  to  make  the  distinction  between  the 
function  of  a  National  Assembly  as  an  organ  of  public 
opinion  and  one  of  legislation.  The  mistake  was  made 
in  attempting  at  once  to  bring  into  existence  a  National  As- 
sembly that  should  exercise  full' legislative  powers.  There 


298      THE  GOVERNMENT  OF  MODERN  STATES 

was  a  complete  failure  to  recognize;  on  the  one  hand,  the  ,- 
impossibility  that  a  body  created..-,  under  conditions  ~  Bitch 
as  obtained^jcprnposed  of  persons.  utterly  jinjtrained  in  the 
art  of  law-making,   having  no  "  cleari^tidefined  legislative 

pledger]    to    carry 


e^eriencejri  the  technique  of  government,  anil  no  organ- 
ized public  opinion  to  control  them,  could  possibly  perform 
effectrvelylHe'work  of  law-making;  andj_onjjae^ther,  the 


?egis4ative 

organ^through  jwhich  publicjQjDinion^jii  respect  to  fflvern- 
mental  policies  and  action  might.  ..he  fnrmiilate4-and-  au~ 
thoritatively  expressed. 

~TEe  situation  there  and  elsewhere  is  clearly  one  where 
progress  towards  the  establishment  of  a  Popular  Govern- 
ment can  best  be  made  step  by  step.  The^r^stejgjn  the 
evolution  from  an  Autocracy  to  Popular  Government  is 
the  establishment  of  the  principle  that  the  government  shall 
be  one  of  law  instead  of  one  of  authority.  This  requires 
no  change  in  the  structure  of  government  but  merely  one  of 
procedure  in  the  exercise  of  powers.  It,  however,  lays  the 
essential  basis  upon  which  all  future  action  must  rest.  Jhe 
nex^step  is  the  creation  of  a  National  Assembly  that  will 

turnishthe  means  through  which  the  public  may  make 
known  its  wishes  regarding  governmental  policies,  and 
express  itself  regarding  the  manner  in  which  governmental 
affairs  are  actually  conducted.  The  establishment  of  such 
a  body,  even  though  it  has  but  this  single  function,  repre- 
sents an  enormous  advance  in  the  direction  of  giving  to 
the  public  a  voice  in  the  administration  of  public  affairs  and 
an  actual  influence  and  control  over  such  administration. 

That  this  voice  and  influence  may  be  effective  it  is  nec- 
essary that  provision  be  made  by  the  law  establishing  the 


THE  LEGISLATIVE  BRANCH  299 

Assembly  for  two  things :  one,  that  the  chief  executive 
shall  lay  before  it  adequate  information  regarding  the 
conduct  of  the  financial  and  other  operations  of  the  gov- 
ernment; and  two,  that  no  act  of  general  legislation  shall 
be  enacted  or  put  in  force  until  the  Assembly  has  been  given 
an  opportunity  to  consider  and  express  its  opinion  regard- 
ing it.  To  meet  these  two  needs  the  author  recommended 
to  the  Chinese  Government  that,  in  drafting  provisions  for 
a  National  Assembly  and  Provincial  Assemblies  the  follow- 
ing things  be  done:  First,  that  the  Assembly  in  each 
case  be  made  an  organ  having  but  the  single  function  of 
serving  as  an  organ  of  public  opinion  as  that  function  has 
been  described  in  the  forgoing  pages;  second,  that  legisla- 
tive power  be  not  conferred  upon  it  but  continue  to  reside 
in  the  hands  of  the  chief  executive ;  third,  that  this  officer,  in 
exercising  this  power,  should  do  so  in  the  following  way: 
All  proposed  legislation  of  a  general  character  should  be 
embodied  in  the  form  of  a  draft  or  bill ;  this  bill  should  then 
be  submitted  to  the  Assembly  for  its  consideration  and 
adequate  time  be  given  to  it  in  which  to  consider  such  pro- 
posal and  to  draft  a  report  expressing  its  conclusions ;  that 
the  Assembly  should  proceed  to  the  discussion  of  the  pro- 
posal and  its  amendment  in  precisely  the  manner  in  which 
assemblies  having  legislative  powers  consider  and  amend 
bills  coming  before  them  for  action ;  that  the  bill  as  amended, 
accompanied  by  a  report  explaining  and  justifying  the 
changes  suggested,  if  any,  should  then  be  returned  to  the 
chief  executive ;  and  that  the  latter  should  thereupon  accept 
or  reject  such  of  the  suggestions  as  he  deemed  wise,  and 
promulgate  the  draft  as  law. 

Secondly,  it  was  recommended  that  power  be  conferred 
upon  the  Assembly  on  its  own  initiative  to  take  up  matters 
for  consideration  and,  by  means  of  memorials  addressed  to 


300      THE  GOVERNMENT  OF  MODERN  STATES 

the  chief  executive,  to  recommend  that  certain  action  be 
taken  by  him,  or  that  he  formulate  and  lay  before  it  propo- 
sals for  legislation  which  in  the  opinion  of  the  Assembly  it 
was  desirable  to  have  enacted. 

Finally,  it  was  recommended  that  the  definite  obligation 
be  imposed  upon  the  chief  executive,  annually,  or  at  more 
frequent  intervals,  to  lay  before  the  Assembly  a  report  of 
the  financial  operations  of  the  government  and  an  adminis- 
trative report  giving  an  account  of  the  manner  in  which  the 
affairs  of  the  government  had  been  conducted  during  the 
period  covered. 

It  will  be  seen  that  according  to  this  proposal  full  au- 
thority and  responsibility  was  imposed  upon  the  chief  ex- 
ecutive for  all  acts  both  legislative  and  administrative.  On 
the  other  hand  it  was  provided  that  this  authority  should 
be  exercised  strictly  in  accordance  with  law  and  that  a  pro- 
cedure should  be  followed  that  would  insure  a  full  oppor- 
tunity to  the  people,  acting  through  their  popular  assembly, 
to  express  their  opinion  in  respect  to  both  action  proposed 
and  had. 

It  might  be  held  that  in  view  of  the  fact  that  the  powers 
of  the  Assembly  are  purely  recommendatory,  advisory,  and 
critical,  that  that  body  would  have  no  real  determining 
voice  in  respect  to  the  conduct  of  affairs  and  that  the  chief 
executive  would  be  subject  to  no  adequate  control.  This 
is  true  from  the  strictly  legal  and  procedural  standpoint. 
From  the  moral  standpoint,  however,  conditions  would  be 
otherwise.  If  the  Assembly  performs  its  duties  in  a  patri- 
otic and  proper  manner;  that  is,  with  regard  to  the  public 
interests,  rather  than  the  personal  interests  of  its  members, 
and  of  the  localities  which  they  represent,  it  is  certain  that 
great  weight  would  be  given  to  its  recommendations  and 
criticism.  If  its  action  is  not  of  this  character  it  is  not 


THE  LEGISLATIVE  BRANCH  301 

desirable  that  its  wishes  should  be  followed.  The  chief 
executive  would  always  be  under  a  strong  incentive  to  make 
his  action  conform  to  the  will  of  the  Assembly  so  far  as 
he  could  do  so  without  sacrificing  the  interests  of  the  State, 
and  to  conduct  the  affairs  of  government  in  such  a  manner 
as  not  to  expose  his  action  to  damaging  criticism,  since  by 
so  doing  the  difficulties  of  his  task  would  be  lessened,  and 
his  position  fortified.  The  real  danger  would  be  that  he 
would  yield  to  popular  pressure  when  he  should  not  do  so, 
rather  than  that  he  would  stubbornly  oppose  the  legitimate 
wishes  of  the  people.  In  the  final  analysis  it  would  be  the 
will  of  the  people,  if  such  will  were  properly  formulated, 
that  would  prevail. 

This  question  of  the  function  of  the  legislative  branch  of 
government  as  an  organ  of  public  opinion  has  been  con- 
sidered thus  fully  since  it  is  a  matter  of  such  extreme  im- 
portance in  respect  to  those  peoples  in  Russia,  China,  and 
elsewhere  who  are  seeking  for  the  first  time  to  establish  a 
really  popular  government. 

Congress  as  a  Board  of  Directors  for  the  Government 
Corporation. —  In  the  foregoing  we  have  pointed  out  how 
the  function  of  a  legislature  as  an  organ  of  public  opinion 
may,  and  should,  be  clearly  distinguished  from  its  function 
as  an  organ  of  legislation.  It  now  becomes  necessary  to 
make  yet  another  distinction,  that  between  the  function  of 
a  legislature  as  a  law-making  body  properly  speaking  and 
that  of  its  function  as  a  board  of  directors  for  the  govern- 
ment corporation. 

Examination  of  the  work  of  any  legislative  body  re- 
veals the  fact  that  the  great  bulk  of  its  activities  has  to  do 
with  such  matters  as  the  determination,  subject  to  constitu- 
tional limitations,  of  how  the  government,  and  particularly 
the  administrative  branch  of  the  government,  shall  be  or- 


302      THE  GOVERNMENT  OF  MODERN  STATES 

ganized,  what  work  shall  be  undertaken,  how  such  work 
shall  be  performed,  what  sums  of  money  shall  be  applied 
to  such  purposes  and  how  this  money  shall  be  raised  and 
disbursed.  From  this  standpoint  the  legislature  is  the 
board  of  directors  of  the  public  corporation.  Represent- 
ing and  acting  for  the  citizen  stockholders,  it  is  its  func- 
tion to  give  orders  to  administrative  officers ;  and,  as  a  cor- 
relative and  necessary  function,  to  take  such  action  as  will 
enable  it  at  all  times  to  exercise  a  rigid  supervision  and 
control  over  the  latter  with  a  view  to  seeing  that  its  orders 
are  properly  and  efficiently  carried  out. 

Manifestly  this  function  is  quite  distinct  from  that  of 
acting  as  a  law-making  body  strictly  speaking.  It  is  unfor- 
tunate that  the  same  designation,  "  laws  "  or  "  statutes,"  is 
given  to  both  classes  of  documents  through  which  the  action 
had  is  set  forth.  Laws  from  the  juristic  standpoint  have 
to  do  with  the  formulation  and  enactment  of  general  rules 
of  conduct  to  govern  the  relations  between  individuals  and 
between  individuals  and  the  government.  They  have  to  do 
with  rights  and  duties  and  the  means  of  their  enforcement. 
They  are  intended  to  be  general  and  permanent.  Enact- 
ments for  the  purpose  of  giving  directions  to  officers  of  the 
government  are  for  the  most  part  but  administrative  orders. 
The  major  part  of  them  have  only  a  temporary  end  in  view. 
Of  this  character  are  the  annual  or  biennial  appropriation 
acts,  acts  authorizing  the  construction  of  a  bridge  or  public 
building,  etc. 

Here  again  it  may  seem  that  the  distinction  that  it  is 
sought  to  set  up  is  not  one  merely  of  academic  interest. 
In  point  of  fact  it  is  one  of  great  practical  importance. 
First  and  foremost  there  is  immediately  raised  the  ques- 
tion as  to  the  extent  to  which  it  is  desirable  that  a  legislative 
body  shall  take  to  itself  this  function  of  a  board  of  di- 


THE  LEGISLATIVE  BRANCH  303 

rectors.  President  Wilson,  one  of  the  most  acute  students 
of  government  that  this  country  has  ever  produced,  is  clearly 
of  the  negative  opinion.  Writing  directly  to  this  point  he 
says: 

The  most  serious  comment,  therefore,  upon  the  development  of 
the  House  of  Representatives  is  that,  in  making  itself  an  active 
part  of  the  government  and  falling  into  the  silence  of  an  effective, 
business-like  board  of  directors,  it  has  forfeited  the  much  higher 
office  of  gathering  the  common  council  of  the  nation  and  wielding 
the  tremendous,  the  governing  and  sovereign,  power  of  criticism.1 

There  are  few,  if  any,  more  radical  points  of  difference 
between  the  governments  of  England  and  the  United  States 
in  their  practical  workings  than  is  represented  by  the  dif- 
ferent ways  in  which  this  question  has  been  answered.  The 
British  Parliament  exercises  this  function  to  the  least  pos- 
sible extent.  It  may  be  said  to  participate  only  in  the 
most  indirect  way  in  the  actual  administration  of  affairs. 
It  is  the  Crown,  acting  through  its  ministers,  which  pre- 
pares the  governmental  work-program,  determines  what 
organization  shall  be  set  up  for  the  performance  of  gov- 
ernmental activities,  and  determines  what  funds  shall  be 
raised  and  how  they  shall  be  appropriated.  It  is  true  that 
revenue  and  appropriation  bills  must  be  laid  before  Parlia- 
ment, and  receive  its  formal  approval.  This,  however,  is 
little  more  than  a  formal  requirement  since  no  material 
change  is  ever  made  in  them  that  does  not  meet  with  the 
approval  of  the  ministry  of  the  day.  It  does  not  enter 
within  the  conception  of  Parliament  that  it  should  have  the 
determination  of  such  administrative  details  as  the  fixing 
of  the  internal  organization  of  services,  the  number  of  em- 
ployees to  be  engaged,  the  salaries  that  shall  be  paid  to 
them,  etc. 


1 "  Constitutional  Government  in  the  United  States,"  pp.  no-ill. 


304      THE  GOVERNMENT  OF  MODERN  STATES 

In  the  American  scheme  of  government  exactly  the  oppo- 
site of  this  policy  prevails.  There  is  no  detail  of  admin- 
istrative organization,  procedure  or  activity  which  is  too 
petty  for  Congress  not  to  concern  itself  with.  Collectively 
one  of  its  chambers  passes  upon  nominations  to  important 
offices,  while  the  members  of  both  houses,  individually,  use 
every  possible  influence  in  their  power  to  determine  who 
shall  be  appointed  to  offices  of  all  grades  of  importance. 
It,  and  not  the  executive,  is  the  branch  of  the  government 
that  determines  in  almost  the  last  detail  what  services  shall 
be  maintained,  how  such  services  shall  be  organized  and  con- 
duct their  business,  what  number  of  employees  shall  be 
engaged,  what  salaries  shall  be  paid  and  how  all  moneys 
voted  shall  be  expended. 

It  is  not  practicable  here  to  enter  into  any  extended 
comparison  of  the  relative  merits  of  the  two  systems.  The 
writer  can  only  say  that,  in  his  opinion,  the  British  system 
is  the  proper  one.  Certainly  there  can  be  no  question  but 
that  the  British  system  has  given  a  far  more  efficient  and 
economical  administration  of  governmental  affairs  than  has 
the  American  system.1 

This  distinction  between  the  two  functions  of  enacting 
laws,  properly  speaking,  and  administrative  orders  is  also 
of  direct  practical  importance  when  a  legislature  enters 
upon  the  problem  of  organizing  itself  and  determining 
its  rules  of  procedure.  It  goes  without  saying  that  a 
body  should  organize  itself  and  adopt  rules  of  procedure 
with  reference  to  the  duties  to  be  performed  by  it.  Mani- 

1  For  a  detailed  account  of  this  aspect  of  the  British  government  in 
its  practical  operation  see  "  The  System  of  Financial  Administration 
of  Great  Britain"  by  W.  F.  Willoughby,  W.  W.  Willoughby,  and  Prof. 
S.  M.  Lindsay.  "  Studies  in  Administration,"  Institute  for  Govern- 
ment Research,  1917. 


THE  LEGISLATIVE  BRANCH  305 

fest  as  is  the  distinction  between  the  two  functions,  when 
once  stated,  and  well  known  as  it  is  to  students  o'f  gov- 
ernment and  jurisprudence,  it  has  been  almost  wholly  ig- 
nored by  Congress  in  providing  for  its  organization  and 
procedure.  It  has  treated  the  two  classes  of  duties  as 
identical  and  has  made  no  attempt  t6  differentiate  between 
them  in  working  out  the  means  for  their  performance. 
[With  two  different  functions  to  perform,  it  has  organized 
and  adopted  rules  with  only  one  of  them  in  mind.  It  has, 
not  only  made  no  attempt  to  organize  with  a  view  spe- 
cially to  the  discharge  of  its  duties  as  a  board  of  directors, 
but  does  not  even  appreciate  that  it  has  here  a  special 
problem  to  be  met.  We  have  thus  here  at  the  outset  an 
explanation,  and  that  a  fundamental  one,  why  Congress  does 
its  governing  work  so  poorly.1 

Congress  as  an  Organ  of  Legislation. —  Not  until  we 
have  a  clear  appreciation  of  the  functions  of  a  legislative 
body  as  an  organ  of  public  opinion  and  as  a  board  of 
directors,  and  especially  the  distinction  between  those  acts 
of  legislation  which  constitute  laws  proper  and  those  which 
are  merely  administrative  orders,  is  it  possible  to  appreciate 
the  real  part  played  by  a  legislature  as  a  creator  of  law 
in  the  strict  sense  of  the  word.  Much  as  we  have  nar- 
rowed the  field  of  law-making  by  making  these  distinctions, 
it  is  necessary  to  narrow  it  yet  further.  As  is  well  known 
the  great  bulk  of  English  and  American  law  as  it  exists 
today  has  not  been  created  by  act  of  formal  legislation  but 

1  The  author  has  handled  this  particular  phase  of  our  government  in 
his  paper  "  The  Correlation  of  the  Organization  of  Congress  with  that 
of  the  Executive."  Proceedings  of  the  American  Political  Science  As- 
sociation 1913-1914,  pp.  155-167.  In  this  paper  the  author,  not  only 
pointed  out  the  failure  on  the  part  of  Congress  to  organize  and  adopt 
rules  having  special  reference  to  the  performance  of  its  hoard  of  di- 
rectors' duties,  but  indicated  the  way  in  which  this  problem,  in  his 
opinion,  could  best  be  met 


306      THE  GOVERNMENT  OF  MODERN  STATES 

has  developed  through  the  slow  process  of  judicial  adjudi- 
cation of  disputes.  This  method,  moreover,  is  the  one 
which  today  is  the  chief  determiner  of  law;  only  in  small 
part  is  our  law  at  the  present  time  in  statutory  form. 

It,  moreover,  is  a  matter  of  more  than  historical  interest 
that  only  slowly  did  Parliament,  or  indeed  legislative 
bodies  generally,  reach  the  position  that  the  enactment 
of  law  was  one  of  its  functions.  As  Edward  Jenks  has 
brought  out  in  his  brilliant  study,  "  Law  and  Politics  in  the 
Middle  Ages,"  it  was  not  for  two  hundred  years  after  the 
establishment  of  Parliament  in  its  modern  form ;  that  is  the 
establishment  of  the  Model  Parliament  of  1295,  that  statutes 
were  other  than  declarations  of  laws  and  customs  claimed 
to  be  already  in  force.1 

"  If  we  glance,"  he  writes,  "  at  the  rolls  of  the  English  Parliament 
we  shall  find  that  the  great  bulk  of  the  petitions  which  are  presented 
during  the  first  two  hundred  years  of  its  existence  are  complaints 
of  the  breach  of  the  customs  or  requests  for  the  confirmation  of 
new  customs  which  evil  disposed  persons  will  not  observe.  .  .  . 
What  is  this  but  to  say  that  Parliament  was  a  law-declaring  rather 
than  a  law-making  body?  .  .  .  To  think  of  a  legislator,  or  even  a 
body  of  legislators  as  sitting  down  in  the  plenitude  of  absolutism 
to  impose  a  law  upon  millions  of  human  beings  is  to  conceive  an 
absurdity.  .  .  .  Law  is  made  unconsciously  by  the  men  whom 
it  most  concerns;  it  is  the  deliberate  result  of  human  experience 
working  from  the  known  to  the  unknown,  a  little  of  knowledge 
won  from  ignorance,  or  order  from  chaos.  .  .  .  The  English  Par- 
liament was  a  splendid  machine  for  the  declaration  of  law.  .  .  . 
The  great  problem  which  lay  before  the  statesmen  of  the  middle 
ages  was  to  devise  a  machine  which  should  declare  and  enforce 
law.  The  supreme  triumph  of  English  statesmanship  is  that  it 
solved  this  problem  some  five  hundred  years  before  the  rest  of  the 
Teutonic  world." 

1  Jenks ;  "  Law  and  Politics  in  the  Middle  Ages." 


THE  LEGISLATIVE  BRANCH  307 

It,  moreover,  is  a  matter  of  importance  to  note  that, 
only  in  comparatively  recent  times,  did  Parliament  seek  to  do 
more  than  make  known  its  wishes  in  respect  to  either  legal 
or  administrative  matters,  and  that  the  expression  of  these 
wishes  in  the  form  of  formal  documents  known  as  "  stat- 
utes "  was  left  to  the  executive.  Parliament  did  nothing 
more  than  consider  grievances  and  petitions  for  action  to 
be  taken  by  the  Crown.  These  petitions  were  forwarded 
to  the  Crown  and,  when  acceded  to,  the  latter  proceeded  to 
put  its  decision  into  effect  by  drawing  up  and  promulgating 
the  formal  document  for  making  known  its  will.  The 
statute  itself  was  thus  not  drawn  until  after  Parliament  had 
been  dissolved. 

Against  this  practice  Parliament  protested,  alleging  that 
the  statutes,  when  promulgated,  in  many  cases  failed  ade- 
quately to  carry  into  effect  the  action  petitioned  for  by  Par- 
liament, and  promised  by  the  Crown.  To  meet  this  situa- 
tion, Parliament  began  the  practice  of  sending  to  the  Crown 
a  draft  of  the  statute  that  it  desired  instead  of  a  petition. 
This  is  the  origin  of  the  modern  bill.  This  procedure  was 
acquiesced  in  by  the  Crown,  in  1414,  and  under  Henry  VII 
became  the  regular  practice  in  at  least  all  cases  of  impor- 
tance.1 

Even  after  Parliament  had  won  its  right  to  send  up  to 
the  Crown  its  desires  expressed  in  the  form  of  a  bill  or 
statute,  it  was  by  no  means  established  that  the  Parliament 
was  the  exclusive  organ  of  legislation.  The  King  con- 
tinued to  exercise  an  ordinance  making  power  that  was  lit- 
tle to  be  distinguished  from  legislative  powers.  All  dur- 
ing the  Middle  Ages  and  down  to  the  Restoration,  it  may  al- 
most be  said  that  England  had  two  legislative  organs  — 
the  King  in  Parliament  and  the  King  in  Council.  This, 

1  Maitland :  "  Constitutional  History  of  England,"  p.  189. 


3o8      THE  GOVERNMENT  OF  MODERN  STATES 

however,  did  not  go  without  protest  on  the  part  of  Parlia- 
ment. 

"  In  1610,"  writes  Maitland,  "  the  Commons  protested  it  is  the 
indubitable  right  of  the  people  of  this  kingdom  not  to  be  made 
subject  to  any  punishment  that  shall  extend  to  their  lives,  land, 
bodies  or  goods  other  than  such  as  are  ordained  by  their  common 
consent  in  Parliament."  1 

Coke,  then  Chief  Justice  of  the  Court  of  Common  Pleas, 
was  consulted  on  this  point,  and,  after  consultation  with 
three  other  judges  upheld  the  contention  of  the  Commons. 
James  I,  however,  continued  to  exercise  legislative  powers 
through  the  issue  of  proclamations,  and  the  question  as 
to  where  legislative  power  was  vested  may  be  deemed  to 
be  one  of  the  main  issues  between  the  Parliamentarians 
and  the  Stuarts.  Not  until  the  Revolution  of  1688  may 
Parliament  be  said  to  have  definitely  established  itself  as 
the  organ  of  legislation  of  the  government.  Thereafter 
such  powers  as  the  Crown  exercised  in  this  field  were  those 
of  an  agent  exercising  delegated  authority. 

Coming  down  to  the  present  time  it  may  be  said  that 
there  is  a  strong  tendency  for  this  function  of  a  National 
Assembly  to  become  one  of  increasing  importance.  This  is 
due  to  two  things :  one  the  constantly  increasing  complexity 
of  social  relations  and  the  corresponding  complexity  of  the 
laws  governing  them ;  and,  two,  the  radical  changes  in  eco- 
nomic and  social  conditions  which  have  rendered  much  of 
the  old  law  inapplicable  or  difficult  of  application.  To 
meet  these  two  conditions  legislative  assemblies  throughout 
the  world  have  applied  themselves  to  the  task  of  codifying 
existing  law  and  of  reforming  it  so  as  better  to  meet  modern 
conditions.  This  has  thrown  a  large  burden  of  pure  law 

1  Op.  cit.,  p.  257. 


THE  LEGISLATIVE  BRANCH  309 

making  upon  such  bodies.  This  burden  it  has  met  chiefly 
through  the  device  of  having  the  work  of  codification  or 
law  drafting  performed  in  the  first  instance  by  special  com- 
missions or  other  outside  agencies  and  has  confined  its  own 
action  to  the  revision  and  enactments  of  proposals  so  pre- 
pared. 

Congress  as  an  Executive  Council. —  In  practically  all 
governments,  though  the  executive  power  is  definitely  vested 
in  the  hands  of  the  chief  magistrate,  recognition  is  had  of 
the  need  for  some  body  that  may  act  in  an  advisory  capacity 
to  that  officer  in  the  exercise  of  this  power.  In  England  this 
body  consisted  of  the  Privy  Council,  from  which  was  evolved 
by  a  process  of  evolution  the  present  British  Cabinet.  In 
France  there  is  the  Council  of  State.  In  our  own  govern- 
ment it  was  the  intention  of  the  framers  of  our  constitution 
that  the  Senate  should  act  in  this  capacity.  Thus  the  con- 
stitution, in  conferring  power  upon  the  President  to  make 
treaties  and  appointments  to  important  offices,  provides  that 
he  shall  exercise  these  powers  "  by  and  with  the  advice  and 
consent  of  the  Senate."  The  use  of  this  expression,  instead 
of  one  indicating  merely  that  his  action  must  meet  with  the 
approval  of  the  Senate,  shows  clearly  that  the  intention  was 
that  the  President  should  actually  confer  with,  and  get  the 
advice  of,  the  Senate  in  performing  these  acts. 

Here  again  is  furnished  an  illustration  of  how  an  express 
constitutional  provision  may,  in  practice,  be  made  to  work 
quite  differently  from  that  planned.  At  the  outset,  Wash- 
ington, the  first  President,  made  one  or  two  attempts  to  carry 
out  the  spirit  of  this  provision  by  meeting  the  Senate  in 
person  for  the  purpose  of  conferring  with  it  in  respect  to 
certain  matters.  The  results  of  such  attempts  were  not  such 
as  to  encourage  him  to  continue  them.  He  accordingly 
inaugurated  the  plan  of  first  formulating  his  proposed  action 


3io      THE  GOVERNMENT  OF  MODERN  STATES 

in  definite  form  and  transmitting  it  to  the  Senate  for  its 
approval,  a  procedure  which  has  uniformly  been  followed 
since  then.  It  has  resulted  from  this  that  the  Senate  has  in 
fact  acted  rather  as  an  approving  body  than  a  consultative 
and  advisory  council. 

The  reason  why  the  Senate  failed  to  function  as  an  execu- 
tive council  in  the  manner  intended  is  not  difficult  to  see. 
To  work  effectively,  an  advisory  body  should  be  composed  of 
persons  selected  by  the  officer  to  whom  its  advice  is  to  be 
given.  It  was  accordingly  but  natural  that  the  President 
should  look  for  advice  rather  to  his  cabinet  composed  of  his 
own  appointees  than  to  the  Senate,  in  the  selection  of  whose 
members  he  had  no  voice.  The  framers  of  the  constitution, 
moreover,  failed  to  take  into  consideration  the  extent  to  which 
party  interests  would  control  governmental  action.  The 
fact  that  the  Senate  would  include  a  number  of  members, 
and  at  times  a  majority  of  members,  of  the  party  opposed 
to  the  President,  was  in  itself  sufficient  to  make  it  unsuitable 
as  an  advisory  body  strictly  speaking. 

Though  the  Senate  thus  does  not  act  as  an  executive  coun- 
cil in  the  manner  intended,  the  participation  thus  granted  to 
it  in  the  exercise  of  the  executive  power  has,  nevertheless, 
proven  to  be  a  matter  of  great  consequence  in  the  actual 
operation  of  government.  It  has  resulted  in  a  more  or  less 
permanent  contest  between  the  President  and  the  Senate  in 
respect  to  the  exercise  of  the  treaty  making  and  appointing 
powers.  In  respect  to  the  first  the  Senate  has  not  contented 
itself  with  the  mere  giving  of  counsel  or  the  approval  or 
disapproval  of  treaties  laid  before  it  by  the  President.  It 
has  not  hesitated  to  amend  such  treaties,  and,  in  other  ways, 
has  sought  to  make  of  itself  a  coordinate,  if  not  the  domi- 
nant, body  for  the  performance  of  this  duty.  In  respect  to 
the  latter  it  has  pushed  its  powers  so  far  that  it  has  to  a  great 


THE  LEGISLATIVE  BRANCH  311 

extent  taken  to  itself  the  duty  of  selecting  in  the  first  instance 
who  shall  be  appointed  to  a  large  class  of  important  positions. 
It  has  been  able  to  do  so  by  the  establishment  of  a  principle 
or  practice  known  as  "  courtesy  of  the  Senate,"  under  which 
nominations  to  positions  in  the  field  services  of  the  govern- 
ment made  by  the  President  will  be  rejected  by  the  Senate 
if  such  nominations  are  objected  to  by  the  Senators  of  the 
states  in  which  such  positions  are  located.  A  contributing 
factor  has  also  been  the  extent  to  which  appointments  to 
office  have  been  looked  upon  as  political  patronage.  The 
practice  thus  is  an  integral  part  of  the  "  spoils  system  " 
which  has  established  itself  so  strongly  upon  the  country. 
A  remedy  for  this  condition  has  been  sought  in  the  restric- 
tion of  the  requirement  that  Presidential  appointments  shall 
require  the  approval  of  the  Senate  to  the  narrowest  possible 
limits.  Such  action  was  strongly  recommended  by  Presi- 
dent Taft  in  transmitting  to  Congress  a  report  of  his  Com- 
mission on  Economy  and  Efficiency  dealing  with  methods  of 
appointment.1 

Before  leaving  this  subject  mention  should  be  made  of  a 
practice  that  does  obtain,  in  which  the  idea  of  the  Senate 
serving  as  a  real  executive  council  finds  at  least  partial  ex- 
pression. Reference  is  made  to  the  practice  of  the  Presi- 
dent conferring  with  the  Committee  on  Foreign  Affairs  of 
the  Senate  in  reference  to  the  negotiation  of  treaties,  or  in 
taking  any  important  action  relative  to  foreign  affairs. 
Much  is  to  be  said  in  favor  of  this  practice.  It  meets  the 
objection  that  is  urged  against  such  important  matters  rest- 
ing wholly  in  the  hands  of  a  single  officer,  gives  to  the 

*"  Economy  and  Efficiency  in  the  Government  Service."  Message 
of  the  President  of  the  United  States.  Transmitting  Reports  of  the 
Commission  on  Economy  and  Efficiency,  April  4,  1912.  House  Doc. 
670,  62nd  Cong.,  2nd  Sess. 


312      THE  GOVERNMENT  OF  MODERN  STATES 

President  counsel  and  advice  which  is  often  valuable,  and 
tends  greatly  to  securing  harmony  between  the  President 
and  the  Senate  in  the  joint  handling  of  these  matters. 

Congress  as  a  High  Court  of  Justice. —  An  essential 
feature  of  Representative  Government  is  the  provision  of 
means  by  which  representatives  of  the  people  may  be  held 
to  an  accounting  for  the  manner  in  which  they  discharge 
their  duties.  /.This  accountability  may  be  secured  in  two 
ways :  by  the  refusal  of  the  electorate  to  return  to  office 
representatives  with  whose  conduct  it  is  dissatisfied ;  and  by 
proceeding  against  them  while  still  in  office.  For  all  ordi- 
nary cases  of  inefficiency  or  misconduct  not  of  a  grave  char- 
acter, the  former  method  is  sufficient.  When  officials  are 
guilty  of  serious  crime  or  of  actions  endangering  the  wel- 
fare of  the  State,  or  tending  to  bring  the  government  into 
disrepute,  a  prompter  and  more  drastic  procedure  is  re- 
quired. To  meet  these  latter  cases  England  early  developed 
the  system  of  what  is  known  as  impeachment  of  high  officers. 
This  system  consists  in  bringing  officers  charged  with  such 
high  crimes  and  misdemeanors  before  the  House  of  Lords 
for  trial  and  the  infliction  of  such  punishment,  if  guilt  was 
established,  as  that  body  saw  fit.  When  the  House  of  Lords 
sat  in  that  capacity  it  was  said  to  sit  as  a  High  Court  of 
Justice. 

This  system  was  borrowed  by  the  framers  of  our  consti- 
tution. They  provided  in  that  document  that  "  the  Presi- 
dent, Vice  President  and  all  civil  officers  of  the  United 
States  shall  be  removed  from  office  on  impeachment  for,  and 
conviction  of,  treason,  bribery,  or  other  high  crimes  and 
misdemeanors."  In  operating  this  system  a  distinction  is 
made  between  the  act  of  impeaching,  that  is,  of  accusing, 
officers  and  that  of  their  trial.  To  the  House  of  Representa- 
tives was  entrusted  the  duty  of  examining  all  charges  against 


THE  LEGISLATIVE  BRANCH  313 

the  officers  named  and  of  determining  whether  justification 
existed  for  their  impeachment.  To  the  Senate  was  given 
the  duty  of  trying  all  officers  so  impeached.  In  respect  to 
the  penalty  that  may  be  imposed,  the  constitution  provides 
that  "  judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust  or  profit  under  the 
United  States ;  but  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgment,  and  punish- 
ment according  to  law." 

This  proceeding  is  one  which  has  been  employed  in  the 
case  of  one  President,  Andrew  Johnson,  and  in  the  case  of  a 
certain  number  of  justices  of  federal  courts. 

It  should  be  noted  that,  for  this  purpose  at  least,  members 
of  Congress  are  not  deemed  to  be  civil  officers.  These  offi- 
cers, when  guilty  of  misconduct,  are  proceeded  against  by 
their  respective  houses  in  accordance  with  the  provision  of 
the  constitution  that  "  each  House  may  .  .  .  punish  its 
members  for  disorderly  behavior,  and,  with  the  concurrence 
of  two-thirds,  expel  a  member." 

Determination  of  the  Structural  Character  of  the 
Legislative  Branch:  Unicameral  or  Bicameral  Legisla- 
ture.—  Having  reached  a  decision  regarding  the  functions 
of  the  legislative  branch,  there  is  next  presented  the  problem 
of  determining  the  character  of  organization  that  it  shall 
have  in  order  that  it  may  perform  these  functions.  In  prac- 
tice this  problem  resolves  itself,  in  the  first  instance,  into  the 
question  as  to  whether  the  legislative  branch  shall  be  made 
to  consist  of  one  or  two  houses,  or,  to  use  the  technical  ex- 
pression, be  a  unicameral  or  bicameral  legislature.  If,  as  is 
usually  the  case,  the  second  alternative  has  been  chosen, 
there  is  then  presented  the  further  question  as  to  whether 
the  two  houses  shall,  or  shall  not,  be  coordinate  in  power; 


3H      THE  GOVERNMENT  OF  MODERN  STATES 

and,  if  not,  what  shall  be  their  respective  powers,  and  their 
relations  to  each  other  and  to  the  other  branches  of  govern- 
ment. As  has  been  indicated,  most  States  in  organizing 
their  governments  have  made  provision  for  a  bicameral 
legislature.  Few  more  interesting  questions  in  political  sci- 
ence are  presented  than  that  of  determining  why  this  choice 
has  been  made  and  the  consequences  that  have  resulted  from 
it.  The  explanation  of  why  this  decision  has  been  made  is 
found  in  two  things :  ( i )  the  historical  circumstances  under 
which  legislative  bodies  have  come  into  existence;  and  (2) 
the  supposed  technical  advantages  of  the  bicameral  over  the 
unicameral  system.  Each  of  these  reasons  requires  separate 
consideration. 

Historical  Development  of  the  Bicameral  System. — 
The  English  Parliament  is,  in  a  very  true  sense,  the  mother 
of  parliaments.  It  constitutes  the  first  successful  example 
of  a  legislature  in  the  modern  sense.  It  is  but  natural, 
therefore,  that  almost  all  nations  in  seeking  to  establish  a 
legislature  should  look  to  it  as  a  model.  It  has  consequently 
influenced  powerfully  the  character  of  all  legislative  bodies 
subsequently  created.  In  regard  to  no  feature  has  this  been 
more  true  than  in  respect  to  its  bicameral  character.  It  is 
safe  to  say  that  had  it  not  assumed  this  form  there  is  little 
likelihood  that  this  character  of  organization  would  now  be 
so  prevalent.  It  is  thus  of  prime  importance  to  determine 
how  the  decision  to  establish  a  bicameral  legislature  should 
have  been  made  by  the  English  people. 

In  seeking  to  do  this  the  first  point  that  stands  out  is  that 
the  English  Parliament,  like  almost  all  English  political  in- 
stitutions, was  not  a  deliberate  creation.  It  came  into  exist- 
ence by  a  process  of  evolutionary  change.  No  such  thing  as 
a  deliberate  weighing  of  the  relative  advantages  of  different 
types  of  organization  took  place.  That  the  English  Parlia- 


THE  LEGISLATIVE  BRANCH  315 

ment  finally  took  the  form  of  a  bicameral  body  was  due  in 
large  part  to  historical  accident.  At  the  time  that  it  began  to 
assume  the  definite  form  that  it  was  thereafter  to  maintain, 
English  society,  or  at  least  that  part  participating  in  any 
way  in  public  affairs,  was  divided  into  three  well  defined 
classes:  the  Lords  Spiritual,  the  Lords  Temporal,  and  the 
Gentry  or  Commoners.  When  the  King  found  it  desirable 
to  summon  his  Grand  Council  in  order  to  secure  aid,  or 
funds,  or  for  other  purposes,  each  of  these  three  classes,  or 
their  representatives,  constituted  distinct  groups  in  it. 
Each,  it  was  held,  ought  to  speak  and  act  for  itself,  deter- 
mine what  taxes  or  levies  it  would  furnish,  etc.  For  a  long 
time  it  hung  in  the  balance  whether  these  three  groups  would 
meet  together  or  separately.  Finally,  the  Lords  Temporal 
and  Spiritual  decided  to  throw  in  their  lots  with  each  other. 
The  Commons,  however,  elected  to  sit  apart.  The  result 
was  the  establishment  of  a  general  assembly  or  Parliament 
of  two  houses.  This  evolution  was  completed  about  the 
end  of  the  thirteenth  century,  when  the  so-called  Model 
Parliament  of  1295  was  summoned.  The  continued  recog- 
nition of  the  distinction  between  the  nobility  and  common 
people  caused  this  form  of  organization  to  be  maintained 
until  the  present  day. 

The  next  country  to  develop  strong  legislative  bodies  as  a 
distinct  branch  of  government  was  America.  Here  the  bi- 
cameral system  was  generally  adopted,  partly  since  it  was 
but  natural  that  the  American  colonists  should  copy  the  in- 
stitutions of  the  mother  country,  and  partly  because  there 
was  a  special  reason  in  their  case  why  they  should  do  so. 
This  reason  consisted  in  the  fact  that  there  were  two  inter- 
ests to  be  represented:  the  mother  country  and  the  colonies 
themselves.  Colonial  legislatures  were  thus  very  generally 
made  to  consist  of  two  houses,  an  upper  house  or  Governors 


3i6      THE  GOVERNMENT  OF  MODERN  STATES 

Council,  composed  of  members  appointed  by  the  Crown,  or 
the  Governor  as  representative  of  the  Crown,  and  a  lower 
house  composed  of  members  elected  by  the  people.1 

After  the  Declaration  of  Independence,  the  states  retained, 
as  far  as  conditions  would  permit,  the  form  of  government 
which  they  already  had.  In  some  cases  new  constitutions 
were  not  adopted  until  many  years  after  they  had  established 
their  independence  of  England.  Even  when  they  entered 
upon  the  work  of  framing  new  constitutions  they  adhered 
in  great  part  to  the  form  of  government  and  the  political 
institutions  to  which  they  were  accustomed.  Among  these 
institutions  so  retained  has  been  the  bicameral  legislature. 
New  states,  as  they  were  erected  out  of  our  public  domain, 
copied  the  main  features  of  the  political  system  of  existing 
states.  Without  exception,  therefore,  the  constituent  states 
of  the  Union  have  a  bicameral  legislature. 

When  our  federal  constitution  was  framed,  so  firmly  was 
established  the  principle  of  a  two-chambered  legislature,  that 
there  was  little  or  no  thought  of  doing  otherwise  than  pro- 
vide for  such  a  body  for  the  new  government  that  was  being 
established.  Furthermore,  the  adoption  of  this  type  of 
legislature  made  it  possible  to  meet  two  of  the  most  difficult 
problems  that  confronted  the  framers  of  our  constitution. 
These  consisted  in  framing  a  system  under  which  the  identity 
or  individuality  of  the  separate  states  would  not  be  merged 
to  too  great  an  extent  in  a  single  government,  and  the  influ- 
ence of  the  smaller  states  would  not  be  overwhelmed  by  that 
of  the  larger.  These  two  considerations  were  met  by  pro- 
viding that  the  national  legislature,  Congress,  should  consist 
of  two  houses,  a  lower  house,  or  House  of  Representatives, 
composed  of  members  elected  directly  by  the  people,  and  an 

1  In  Massachusetts,  Connecticut  and  Rhode  Island,  the  members  of 
the  Upper  House  were  elected  by  the  General  Assemblies. 


THE  LEGISLATIVE  BRANCH  317 

upper  house,  or  Senate,  composed  of  members  selected  by 
the  states,  it  being  provided  that  each  state,  regardless  of  its 
size,  should  be  entitled  to  two  representatives,  or  Senators, 
as  they  are  called.  As  originally  adopted  the  constitution 
provided  that  the  Senators  should  be  chosen  by  the  legisla- 
tures of  the  respective  states  for  terms  of  six  years.  This 
system  developed  certain  evils,  the  more  important  of  which 
was  the  large  use  of  money  by  candidates  and  the  failure  of 
legislatures  to  agree  upon  a  choice,  which  led  to  the  adoption 
in  1913  of  an  amendment  providing  that  thereafter  Sena- 
tors should  be  elected  directly  by  the  people. 

If  we  examine  the  circumstances  under  which  modern 
European  States  have  adopted  a  bicameral  legislative  system, 
it  will  be  found  that  in  some  cases,  as  in  that  of  Germany, 
this  decision  was  made  in  order  to  meet  special  conditions, 
while  in  others,  the  only  reason  apparently  was  that  they 
were  influenced  by  the  fact  that  this  system  was  so  generally 
employed. 

Comparison  of  the  Unicameral  and  Bicameral  Sys- 
tems.— The  foregoing  sketch  of  the  circumstances  under 
which  the  bicameral  legislative  system  has  come  into  general 
use  is  important  as  showing  that  this  system  has  been 
adopted,  not  in  pursuance  of  a  reasoned  belief  in  its  superior- 
ity over  the  unicameral  system,  but  as  the  result  of  historical 
accident,  the  necessity  for  meeting  certain  special  problems, 
or  a  mere  copying  of  existing  institutions.  Though  this  is 
so  there  is  nevertheless  a  strong  belief  that  this  system  has 
intrinsic  merits  which,  apart  from  all  other  considerations, 
justify  its  employment.  It  is  a  matter  of  importance  to  de- 
termine whether  this  is  so ;  for,  if  such  technical  advantages 
cannot  be  established,  there  is  no  warrant  for  the  employ- 
ment of  this  system  except  in  those  cases  where  very  special 
reasons  for  so  doing  obtain. 


3i8      THE  GOVERNMENT  OF  MODERN  STATES 

If  the  two  systems  be  studied  purely  as  pieces  of  govern- 
mental machinery  it  would  seem  that  the  unicameral  system 
would  be  the  one  logically  to  be  adopted.  It  is  simple,  jfe- 
sponsibility  is  definitely  located.  IL  furnishes  the  means  jor 
a  direct  authoritative  representation  of  the  electorate.  Itjs_ 
the  system  invariably  employed  in  providing  for  the  exercise 
of  general  direction  and  rule-making  powers  in  all  lar^e 
private  corporations.  The  bicameral  system,  in  contrast 
withthis,  is  complicated  and  expensive.  Responsibility  is 
divided.  It  leads  to  delav^in  actigji.  Two  separate  bodies 
have  to  be  brought  into  accord  before  any  action  can  be 
taken.  In  many  cases  this  means  that  proposed  action  will 
be  defeated;  while,  in  almost  all  cases,  the  result  is  a  com- 
promise. What  then  are  the  supposed  advantages  of  the 
system  which  are  believed  to  be  of  sufficient  advantage  to 
more  than  counterbalance  these  undoubted  disadvantages? 
Generally  speaking,  they  are  as  follows:  The  Bicameral 
,pys{em  compels  delay  and  deliberation,;  it  makesjt  impossible 
for  a  legislature  to  be  swept  from  its  Jfeej 


ofjmreasoning  popular  opinicm  ;  it  ensuresjhat  opportunity 
will  always  be  g^iven  for  a,  solder  second  thought  :  i 
that  measures  before  theiii  adoption  will  tindejg-o  a 
revision;  itjriakes  possible  a  better  representation  of  differ- 
ent interests  in  the  government"  It  will  thus  be  seen  that, 
in  a  Popular  GoverhrnentTTCTteast,  the  special  functions  of  a 
second  chamber  are  those  of  serving  as  an  organ  of  revision, 
a  check  upon  democracy,  an  instrument  by  which  conserva- 
tism in  action  may  be  had,  and  a  means  for  securing  a  repre- 
sentation of  interests  that  is  not  feasible  in  a  single  chamber 
composed  of  members  elected  directly  by  the  people. 

All  of  these  are  desirable  ends.  It  must  be  evident,  how- 
ever, that  if  a  second  chamber  is  really  to  perform  these 
functions  it  must  be  specially  constituted  with  those  ends  in 


THE  LEGISLATIVE  BRANCH  319 

view.  Its  members  in  the  first  place  should  be  selected  in 
some  other  manner  than  that  obtaining  for  the  selection  of 
the  membgnLof  the  lower  house.  Thf>  gpprial  gffr»rf  afrpiiifl 
be  made  that  it  should  have  a  less  political  character  t^n  th* 
lower  house ;  that  is,  should  be  cotr^osedjiLpprsQn^  wb<">  wilj 
giake  tEeiraecisjons  rest  upon  considerations  of  the  general 
welfare  rather  than  political  exigencies,  The  question  is 
further  presented,  whether,  in  view  of  the  fact  that  the  main 
justification  for  a  second  chamber  consists  in  securing  de- 
liberation and  a  reconsideration  and  revision  of  measures, 
that  its  powers  should  not  be  restricted  to  the  performance 
of  such  functions;  whether,  in  other  words,  the  initiation  of 
all  measures  should  not  take  place  in  the  lower  house  and  the 
authority  of  the  upper  house  be  limited  to  considering  these 
measures  and  returning  them  to  the  lower  house  with  its 
recommendations,  the  final  decision  resting  with  the  latter 
body. 

In  point  of  fact  if  we  study  the  bicameral  system  from 
the  standpoint  of  its  actual  character  and  operation,  rather 
than  from  its  theoretical  or  possible  advantages,  it  will  be 
found  that  the  considerations  which  have  been  enumerated 
are  met  to  but  a  comparatively  slight  extent.  Especially  is 
this  true  in  the  United  States.  In  both  our  national  and 
state  governments  the  two  houses  are  for  all  practical  pur- 
poses coordinate  in  power  in  respect  to  matters  of  legisla- 
tion; both  are  composed  of  members  elected  directly  by  the 
people;  in  both  political  considerations  have  equal  weight; 
one  is  no  more  of  a  revising  body  than  the  other.  It  results 
in  consequence  that,  in  the  United  States,  we  have  all  the 
disadvantages  of  a  two-chambered  system  with  but  few  of 
its  advantages. 

In  England  the  technical  requirements  of  a  bicameral  sys- 
tem are  met  to  a  far  greater  extent.  The  upper  house  is 


320      THE  GOVERNMENT  OF  MODERN  STATES 

composed  of  members  holding  their  office  for  life.  Most  of 
them  represent  a  distinct  class  while  the  others  are  selected 
as  the  result  of  offices  held  by  them  or  the  possession  of 
special  qualifications.  In  no  case  are  they  the  direct  repre- 
sentatives of  particular  political  parties.  They  are  thus  free 
from  the  obligations  resting  upon  members  so  selected.  In 
practice  all  important  measures  originate  in  the  lower  and 
popular  branch.  Since  the  passage  of  the  famous  Parlia- 
ment Act  of  1911  the  upper  house  no  longer  has  the  power 
of  definitely  rejecting  measures  coming  to  it  from  the  lower 
house.  The  House  of  Lords,  in  a  word,  has  precisely  the 
character  of  a  body  whose  sole  function  is  that  of  delay,  of 
forcing  deliberation  and  reconsideration  of  measures,  of 
subjecting  such  measures  to  technical  revision,  and  generally 
of  ensuring  conservatism  in  the  conduct  of  public  affairs. 
In  Canada  the  upper  house  of  the  Dominion  Parliament  is 
likewise  composed  of  members  holding  office  for  life. 
Here,  too,  the  dominant  branch  is  the  lower  house,  the 
upper  house  acting  merely  as  a  brake  upon  the  lower,  able 
at  times  to  retard  but  not  to  prevent  final  action.  It  is  not 
contended  that  the  system  either  in  England  or  Canada 
works  with  perfect  satisfaction.  In  neither  case  does  the 
upper  house  take  its  function  as  a  revising  body  with  suffi- 
cient seriousness.  In  both  countries  irritation  is  felt  when- 
ever the  upper  house  holds  up  measures  desired  by  the  lower 
house.  Indeed  the  feeling  is  more  or  less  strong  in  both 
countries  that  these  houses  serve  no  useful  purpose,  or  at 
least  none  of  sufficient  importance  to  warrant  their  main- 
tenance. This  condition  of  affairs  only  serves  to  raise  more 
strongly  the  question  whether,  even  under  the  best  condi- 
tions, the  bicameral  system  is  one  that  meets  modern  condi- 
tions as  well  as  the  unicameral  system. 

It  is  little  short  of  remarkable  that,  in  view  of  the  im- 


THE  LEGISLATIVE  BRANCH  321 

portance  of  the  issue,  so  little  attention  has  been  given  to 
this  question.  It  is  one  which  we  regret  that  we  cannot 
more  fully  consider  here.  Before  leaving  it,  however,  one 
or  two  general  observations  should  be  made.  The  first  of 
these  is  that  there  is  far  greater  justification  for  the  adop- 
tion of  a  bicameral  system  in  the  case  of  a  Multiple  or 
Federal  Government  than  in  that  of  a  Unitary  Government. 
Through  it,  representation  can  be  given  to  constituent  states, 
as  well  as  to  the  people  as  a  whole,  and  a  balance  between 
large  and  small  states  better  be  maintained.  A  like  justifi- 
cation exists  in  respect  to  the  governments  established  for 
dependent  territory,  where  it  is  desirable  to  have  the  two 
distinct  interests  of  the  mother  country  and  the  population 
of  the  dependency  represented.  The  second  is  that  no  such 
justification  exists  in  the  case  of  our  individual  states.  In 
the  author's  opinion,  at  least,  a  careful  weighing  of  the  ad- 
vantages and  disadvantages  of  the  two  systems,  whether 
from  the  standpoint  of  theory  or  practice,  would  in  the  case 
of  our  individual  states  cause  the  decision  to  be  made 
in  favor  of  the  unicameral  system.  To  a  still  greater  extent 
is  this  true  of  the  governments  established  for  municipalities 
and  other  minor  political  subdivisions. 

Determination  of  the  Composition  and  Method  of 
Selection  of  Members  of  the  Legislative  Branch. —  The 
determination  of  the  composition  or  membership  of  legisla- 
tive bodies  and  the  manner  in  which  such  members  shall  be 
selected,  gives  rise  to  a  number  of  important  questions. 
Among  these  may  be  mentioned:  the  question  of  size,  the 
length  of  term  of  members,  the  qualifications  required  of 
members,  the  method  of  their  selection,  provision  for  the 
representation  of  minorities,  or  proportional  representation, 
and  the  requirement  of  a  plurality  or  majority  in  order  to 
elect. 


322      THE  GOVERNMENT  OF  MODERN  STATES 

The  Question  of  Size. —  From  the  standpoint  of  effi- 
ciency in  operation  it  is  desirable  that  legislative  bodies 
should  be  of  comparatively  small  size.  From  the  stand- 
point of  representation,  however,  a  larger  membership  is  re- 
quired. In  practice  the  attempt  has  to  be  made  to  harmon- 
ize these  two  conflicting  considerations.  In  general  it  may 
be  said  that  legislative  bodies  have  been  given  too  large  a 
membership.  This  is  especially  true  in  respect  to  the  House 
of  Representatives  of  the  United  States  Government.  This 
question  of  size  comes  up  on  the  occasion  of  each  decennial 
enumeration  of  the  population,  since  the  constitution  pro- 
vides that  the  number  of  representatives  shall  be  apportioned 
among  the  states  in  proportion  to  their  respective  popula- 
tions. Always  the  attempt  has  been  made  to  avoid  increas- 
ing the  total  number  of  members.  Invariably,  however, 
this  attempt  has  failed,  due  to  the  unwillingness  of  the  states 
whose  populations  have  increased  at  a  slower  rate  than  those 
of  others  to  have  their  representation  reduced  in  order  to 
offset  the  additional  members  that  must  be  given  to  such 
other  states.  The  result,  therefore,  has  been  the  working 
out  of  a  system  under  which  no  state  will  have  its  represen- 
tation diminished,  a  system  which  has  carried  with  it  a  con- 
stantly increasing  total  membership  of  the  House. 

The  Length  of  Term  of  Members. —  A  second  question 
is  that  of  the  length  of  terms  of  members,  or,  to  state  it  in 
another  way,  the  frequency  with  which  elections  will  be  held 
when  the  members  are  selected  in  this  way.  Here,  too, 
there  is  a  conflict  cf  considerations.  On  the  one  hand  it  is 
desirable  to  have  terms  short  in  order  that  the  electorate  may 
effectively  control  their  representatives.  Short  terms,  how- 
ever, have  the  very  serious  disadvantages  that  they  put  the 
government  and  the  people  to  the  expense  and  disturbing 


THE  LEGISLATIVE  BRANCH  323 

influences  of  frequent  elections ;  they  make  a  great  demand 
on  the  time  and  energies  of  representatives,  and  interfere 
seriously  with  the  discharge  of  their  legislative  duties;  and 
they  lessen  the  independence  of  representatives  since  they 
have  constantly  to  keep  in  mind  the  effect  of  their  votes  on 
their  chances  of  reelection.  Men  who  would  make  the  most 
desirable  representatives  are  deterred  from  undertaking  the 
task  since  they  are  unwilling  to  subject  themselves  to  the  ex- 
pense and  trouble  entailed  by  frequent  election  contests. 
More  than  all,  however,  frequent  elections  lead  to  a  constant 
shifting  in  the  membership  of  legislatures,  with  the  result 
that  such  bodies,  where  frequency  in  elections  obtains,  are 
composed  in  large  part  of  new  and  inexperienced  members. 
Regarding  the  result  of  this  system  in  the  United  States, 
Mr.  Jones,  in  his  work  on  "  Statute  Law  Making/'  says : 

The  result  of  short  terms  is  that,  in  the  average  American  com- 
monwealth, energy  that  should  be  devoted  to  legislation  is  devoted 
to  party  ballots.  .  .  .  The  biennial  recurrence  of  the  elections  ex- 
hausts the  energy  and  enthusiasm  of  the  member.  His  salary 
hardly  meets  his  expenses ;  it  certainly  is  insufficient  to  support  his 
family.  After  a  first  term  he  concludes  to  let  someone  else  try  it; 
he  gives  way  to  a  "  green  "  man  who  must  spend  his  time  in  "  learn- 
ing the  ropes."  This  succession  of  new  recruits,  under  our  present 
system,  is  one  of  the  main  causes  of  the  mass  of  poorly  drawn  laws 
for  which  the  legislature  is  blamed.  .  .  .  The  difficulty  under  which 
we  work  on  this  account  appears  in  the  statistics  of  length  of  ser- 
vice as  shown  in  biographical  sketches  in  some  of  the  legislative 
manuals.  In  the  Minnesota  House  of  Representatives  in  the  ses- 
sion of  1911  there  were  120  members,  75  of  whom  had  never  served 
in  the  legislature  before,  45  had  served  before,  20  for  2  terms,  and 
7  for  3  terms.  In  the  House  of  Representatives  of  Missouri,  in  the 
session  of  1911,  there  were  102  new  members,  and  41  who  had  seen 
service  before,  and  of  these  12  for  2  terms  and  7  for  3  terms.  Of 
the  95  members  of  the  North  Dakota  House,  in  1909,  71  were  new 
men  and  24  had  served  before,  and  of  these  6  for  2  terms.  In  the 


324      THE  GOVERNMENT  OF  MODERN  STATES 

Vermont  House  of  Representatives  of  246  members  in  1910-11,  22, 
less  than  io%,  had  served  before  and  of  these  9  for  2,  5  for  3,  3  for 
5,  and  2  for  6  terms.1 

When  one  considers  the  character  of  the  issues  that  arise 
in  state  legislatures  there  would  seem  to  be  no  reason  why 
so  frequent  appeals  should  be  made  to  electorates.  In  the 
case  of  a  central  government  the  argument  in  favor  of  short 
terms  is  much  stronger.  Here  new  issues  of  great  import- 
ance are  constantly  arising,  and  means  should  be  provided  by 
which  electorates  can  express  themselves  promptly  upon 
them. 

The  Qualifications  of  Members. —  The  qualifications 
that  shall  be  required  of  members  of  the  legislature  consti- 
tutes another  question  that  in  the  past  has  been  of  much 
greater  importance  than  at  the  present  time.  In  former 
times,  the  possession  of  property,  adherence  to  a  particular 
religious  belief,  were  among  the  requirements  most  strenu- 
ously insisted  upon.  At  the  present  time  the  tendency  is  to 
require  of  legislators  no  qualifications  that  are  not  demanded 
of  electors  or  voters. 

The  Method  of  Selection  of  Members:  The  General 
Ticket  and  District  Plans. —  Much  the  most  important 
question  of  all,  however,  is  that  of  the  method  that  will  be 
employed  in  selecting  members  of  the  legislature.  This  is  a 
question  that  is  different  for  each  house.  We  have  already 
given  some  consideration  to  the  question  of  the  composition 
and  method  of  selection  of  members  of  the-upper  house.  In 
the  case  of  most  governments  the  policy  has  been  pursued  of 
giving  greater  stability  to  this  house  by  providing  that  its 
members  shall  hold  office  in  virtue  of  their  status  as  mem- 
bers of  the  nobility,  by  appointment  by  the  chief  executive 
for  life  or  long  terms,  by  selection  by  some  other  branch  of 

1 C.  L.  Jones :  "  Statue  Law  Making,"  pp.  12-13. 

• 


THE  LEGISLATIVE  BRANCH  325 

the  government,  or  a  specially  constituted  electoral  college, 
or  in  some  other  manner  than  by  direct  election  by  the  peo- 
ple. In  marked  contrast  with  this  is  the  practice  in  both 
our  national  and  state  governments  to  have  members  of  the 
upper  house  elected  directly  by  the  people,  the  main  differ- 
ence in  procedure  from  that  followed  in  the  case  of  the 
lower  house  being  that  the  membership  is  almost  always, 
if  not  always,  smaller,  and  the  terms  of  office  longer. 

Turning  now  to  the  matter  of  the  election  of  members  of 
the  lower  house,  it  will  be  found  that  a  large  number  of 
interesting  and  important  variations  in  methods  of  pro- 
cedure may  be  employed.  Among  the  questions  raised  is 
that  as  to  whether  the  principle  of  representation  shall  be 
that  of  the  state  as  a  whole,  or  of  districts.  Under  the 
former  system  the  voters  participate  in  the  election  of  all 
the  representatives.  Under  the  latter,  the  territory  of  the 
State  is  divided  into  as  many  districts  as  there  are  repre- 
sentatives to  be  elected  and  the  voters  participate  only  in  the 
election  of  the  single  representative  for  the  district  in  which 
they  live.  In  case  the  latter  method  is  employed  the  further 
question  is  raised  as  to  whether  residence  within  the  dis- 
trict where  they  are  candidates  shall  constitute  one  of  the 
qualifications  required  of  candidates.  The  relative  merits 
of  these  different  systems  have  been  much  discussed,  and 
practice  varies  widely  in  different  countries.  In  the  United 
States  the  system  of  individual  districts  and  the  requirement 
in  fact,  if  not  in  law,  that  candidates  shall  reside  within  the 
districts  they  are  to  represent,  generally  obtains.  In  Eng- 
land the  system  of  individual  districts  exists,  but  members 
may  be,  and  are,  elected  regardless  of  their  residence.  In 
France  repeated  trial  has  been  made  of  both  systems,  which 
are  there  known  as  the  system  of  scnitin  de  liste  and  scrutin 
d'  arrondissement. 


326      THE  GOVERNMENT  OF  MODERN  STATES 

The  advantages  claimed  for  the  district  system  are  that  it 
establishes  a  more  intimate  relationship  between  representa- 
tives and  their  constituencies;  that  all  parts  of  the  state  will 
be  represented ;  and  that,  under  it,  an  opportunity  is  afforded 
minority  parties  to  secure  representation.  Under  the  gen- 
eral ticket  plan  it  is  evident  that  a  party  casting  a  majority 
of  the  votes  can  elect  all  the  representatives,  with  the  result 
that  minority  parties,  even  though  they  may  constitute  a 
very  considerable  part  of  the  electorate,  may  be  absolutely 
without  representation.  Under  the  district  plan  these 
minority  parties,  unless  they  are  in  a  minority  in  all  the  dis- 
tricts taken  individually,  will  secure  a  measure  of  represen- 
tation. It  should  be  noted,  however,  that  under  the  dis- 
trict plan,  it  is  quite  possible  for  a  party  which  is  in  a  minor- 
ity in  the  State  as  a  whole  to  secure  a  majority  of  the  repre- 
sentatives. This  results  when  the  bulk  of  the  voting 
strength  of  the  majority  party  is  concentrated  in  a  few  dis- 
tricts while  that  of  the  minority  party  is  more  widely  dis- 
tributed. 

The  advantages  claimed  for  the  general  ticket  plan  are: 
That  it  ensures  that  the  majority  party  will  prevail;  that 
the  greater  freedom  allowed  in  selecting  candidates  permits 
of  the  election  of  superior  men;  and  that,  inasmuch  as  the 
members  elected  represent  the  whole  State,  instead  of  single 
districts,  they  will  make  their  action  conform  to  the  welfare 
of  the  State  as  a  whole,  rather  than  to  interests  of  particular 
districts.  By  many,  the  district  plan  in  vogue  in  the  United 
States  is  held  to  be  largely  responsible  for  what  is  known 
as  the  "  pork  barrel  "  evil ;  that  is,  the  practice  of  each  mem- 
ber seeking  to  secure  the  expenditure  of  as  large  an  amount 
as  possible  of  public  money  in  his  district,  regardless  of 
whether  there  is  more  urgent  need  for  such  expenditure 
elsewhere.  Without  denying  that  there  may  be  some  basis 


THE  LEGISLATIVE  BRANCH  327 

for  this  contention,  experience  elsewhere  would  seem  to    A   £>* 
indicate  that  this  evil  is  one  which  can  only  be  effectively 
controlled  by  the  development  of  a  strong  public  opinion  that     ^  [ 
will  discountenance  it.  "7  b\ 

The  Question  of  Minority  or  Proportional  Represen- 
tation.—  In  contrasting  the  relative  advantages  and  disad- 
vantages of  the  general  ticket  and  district  plans  an  import- 
ant issue  of  principle,  as  well  as  of  practice,  is  raised.  This 
consists  in  the  determination  of  the  conditions  that  ought 
tp  prevail  in  respect  to  representation  of  majority  and  minor- 
ity parties  in  legislative  bodies.  We  have  seen  that  neither 
the  district  nor  the  general  ticket  plan  will  always  give  satis- 
factory results.  Under  the  former,  a  minority  may  and 
indeed  often  does,  secure  a  majority  of  the  representatives,  a 
result  which  is  manifestly  illogical  and  contrary  tp  the  spirit 
of  popular  government.  Under  the  latter  the  minority  will 
fail  to  secure  any  representation  at  all  though  its  strength 
may  be  but  little  inferior  to  that  of  the  majority  party. 
This  result  is  believed  to  be  undesirable  from  two  stand- 
points :  one,  that  it  denies  to  a  considerable  portion  of  the 
people  any  participation  in  the  conduct  of  their  political 
affairs ;  and,  two,  that  it  relieves  the  party  in  power  from  the 
restraining  influence  of  a  strong  opposition.  Both  of  these 
are  points  of  great  importance.  The  first  is  so  evident  that 
no  further  comment  is  required.  The  second  is  one  whose 
significance  can  be  properly  appreciated  only  by  an  examina- 
tion of  the  actual  workings  of  parliamentary  institutions. 
All  students  of  Popular  Government  place  the  highest  im- 
portance upon  the  necessity  for  a  strong  opposition  in  all 
legislative  bodies.  It  is  its  function  to  subject  all  proposals 
of  the  party  in  power  to  critical  examination,  and  to  compel 
such  party  at  all  times  to  justify  its  proposed  action.  It 
is  the  most  effective  means  known  for  enforcing  responsi- 


328      THE  GOVERNMENT  OF  MODERN  STATES 

bility,  exercising  control,  and  raising  issues  to  be  passed  upon 
by  the  electorate  at  ensuing  elections.  Without  such  oppo- 
sition, the  danger  of  abuse  of  power  would  be  acute.  It  may 
thus  be  stated  without  hesitation  that  the  system  of  selecting 
members  of  a  legislative  body  should  be  such  that  assurance 
will  be  had  that  such  an  opposition  will  be  present. 

This  problem  of  minority  representation  is  complicated 
when  the  electorate,  instead  of  being  divided  into  two  great 
parties,  is  divided  into  a  number  of  parties,  and  especially  so 
when  no  one  party  represents  a  majority  of  the  voters. 
Logically  it  would  seem  that  the  ideal  system  would  be  one 
where  each  party  would  secure  the  number  of  representatives 
corresponding  to  its  proportional  strength.  Under  such  a 
system  the  legislature  would  be  a  replica  in  miniature  of  the 
electorate.  Many  ingenious  plans  have  been  devised  for 
accomplishing  this  purpose.  These  plans  call  for  what  is 
known  as  Proportional  Representation.  These  systems,  of 
which  the  most  important  is  that  brought  forward  for  adop- 
tion in  England  in  1859  by  Mr.  Hare,  provide  for  either 
what  is  known  as  cumulative  or  preferential  voting.  Under 
the  former,  voters  are  given  more  tha/n  one  vote  and  are 
allowed  to  cast  them  all  for  a  single  candidate  or  distribute 
them  among  a  number  of  candidates.  Under  the  second, 
voters  are  permitted  to  indicate  on  their  ballots,  not  only 
their  first,  but  their  second,  or  third,  choice  as  well.  It  is 
not  feasible  for  us  to  attempt  here  any  detailed  description 
of  these  systems  or  statement  of  the  arguments  that  are 
brought  forward  in  their  support.  It  is  merely  desired  to 
make  known  that  here  is  an  -important  problem  that  should 
receive  consideration  in  an  attempt  to  provide  an  electoral 
system.1 

1  For  information  regarding  this  problem  see :  Humphrey's  "  Pro- 
portional Representation,"  Common's  "  Proportional  Representation," 
and  the  publications  of  the  Proportional  Representation  League. 


THE  LEGISLATIVE  BRANCH  329 

The  attitude  that  one  will  take  towards  the  adoption  of 
any  plan  calculated  to  give  proportional  representation  to  all 
political  parties  will  be  influenced  not  a  little  by  the  extent 
to  which  he  believes  that  it  is  desirable  that  minor  as  well 
as  major  political  parties  shall  be  fully  represented  in  a 
legislative  body.  In  the  consideration  that  will  hereafter 
be  given  of  the  function  of  political  parties  in  modern  gov- 
ernments, it  will  be  pointed  out  that  two  systems  of  political 
parties  are  to  be  found  in  modern  States ;  that  known  as  the 
Two-Party  System,  which  prevails  in  England  and  her 
Dominions,  and  in  the  United  States,  where  voters  are  for 
the  most  part  arrayed  in  two  big  parties,  standing  in  oppo- 
sition to  each  other;  and  that  of  the  Multi-Party  System, 
which  prevails  generally  in  other  countries  where  voters  are 
organized  in  a  number  of  parties,  no  one  of  which  repre- 
sents a  majority  of  the  voters.  Students  of  the  political 
systems  of  England  and  the  United  States  have  laid  great 
stress  upon  the  necessity  for  the  Two-Party  System  that 
there  obtains,  if  Popular  Government  is  to  work  success- 
fully. It  is  held  to  be  of  prime  importance  that  the  con- 
trol of  the  government  at  any  one  time  shall  be  in  the  hands 
of  a  single  strong  party  rather  than  in  a  combination  of 
parties  no  one  of  which  represents  a  majority  of  voters; 
that  in  this  way  only  is  relative  permanency,  unity  and  con- 
sistency of  program  to  be  secured  and  responsibility  defi- 
nitely located.  The  government  resulting  under  the  Multi- 
Party  System,  it  is  claimed,  results  in  constantly  changing 
combinations  of  parties,  compromises,  and  a  consequent  diffi- 
culty on  the  part  of  voters  definitely  to  locate  responsibility. 
This  is  a  subject  that  will  receive  further  consideration  in 
another  place.  It  is  only  mentioned  here  on  account  of  its 
important  bearing  upon  the  subject  under  consideration. 

The  Requirement  of  a  Majority  or  a  Plurality  in  Order 


330      THE  GOVERNMENT  OF  MODERN  STATES 

to  Elect. —  Still  another  point  that  must  receive  considera- 
tion in  framing  an  electoral  system  is  as  to  whether  a  ma- 
jority or  a  plurality  will  be  required  in  order  to  elect.  When 
there  are  only  two  parties  one  of  course  will  always  receive 
a  majority,  except  in  rare  cases  where  a  tie  results.  When 
there  are  more  than  two  parties,  it  will  often  happen  that 
no  candidate  receives  a  majority,  that  is,  more  than  half  the 
votes  cast.  In  such  cases  the  decision  must  be  made  as  to 
whether  the  candidate  receiving  the  largest  number  of  votes 
cast,  though  less  than  a  majority,  that  is,  receiving  a  plural- 
ity, will  be  deemed  to  be  elected,  or  whether  a  new  election 
shall  take  place.  In  England  and  the  United  States  the 
plurality  system  under  which  the  candidate  receiving  the 
largest  number  of  votes  is  deemed  elected,  whether  such 
number  constitutes  a  majority  or  not,  generally  prevails.  In 
France,  Germany  and  on  the  Continent  of  Europe  generally, 
the  other  system  usually  obtains.  Under  this  system,  if  no 
candidate  at  the  first  election  secures  a  majority,  a  second 
ballot  is  held  to  determine  which  of  the  two  candidates  re- 
ceiving the  largest  number  of  votes  at  the  first  ballot  shall  be 
elected.  This  system  has  the  great  advantage  that  voters 
for  the  other  candidates  can  indicate  their  preference  as 
between  the  two  leading  candidates.  It  may  well  happen 
that  such  persons  finding  that  they  cannot  elect  their  first 
choice  will  prefer  to  be  represented  by  the  candidate  receiv- 
ing the  second  largest  number  of  votes,  rather  than  by  the 
one  receiving  the  largest  number  of  votes  at  the  first  ballot. 
It  will,  of  course,  not  escape  notice  that  the  reason  why 
England  and  the  United  States  have  adopted  one  system  and 
the  countries  of  Europe  the  other,  lies  primarily  in  the  dif- 
ferences in  their  party  systems.  Where  the  two-party  sys- 
tem obtains  the  issue  between  the  majority  and  plurality 
systems  is  of  relatively  little  importance.  Where  there  are 


THE  LEGISLATIVE  BRANCH  331 

a  number  of  parties,  however,  the  matter  is  one  of  great 
importance. 

The  foregoing  represents  by  no  means  all  of  the  questions 
that  have  to  be  answered  in  determining  the  composition  and 
method  of  selection  of  members  of  the  legislative  branch. 
They  serve,  however,  to  make  known  the  general  character 
of  these  questions  and  the  important  bearing  that  they  have 
on  the  political  system  resulting. 

Determination  of  the  Life  or  Duration  of  Legislatures. 
—  A  feature  that  markedly  distinguishes  the  legislative 
branch  from  the  other  branches  of  government,  is  that  it 
does  not  have  a  continuous  existence  in  the  same  way  as  do 
those  other  branches.  By  this  is  meant,  not  merely  that 
there  is  a  change  in  personnel  but  that  the  legislature  as  a 
legislature  has  an  interrupted  existence.  In  the  first  place 
all  legislatures,  without  exception,  are  elected  for  fixed 
terms  and  when  these  terms  expire  they  go  out  of  existence 
and  new  legislatures  are  elected.  Furthermore,  many  sys- 
tems of  government  provide  that  legislatures  may  be  brought 
to  an  end  prior  to  the  expiration  of  the  term  for  which  they 
are  elected.  Such  for  example  is  the  system  of  England  and 
Germany,  where  the  lower  house  may  be  dissolved  by  the 
King  or  Emperor  and  new  elections  ordered,  a  proceeding 
which  brings  to  an  end  the  legislature  then  sitting. 

When  a  legislature  is  terminated  in  either  of  these  ways 
there  is  a  complete  end  to  its  work,  no  matter  in  what  stage 
it  may  be.  The  new  legislature  starts  with  an  absolutely 
clean  slate.  It  is  not  even  organized ;  nor  has  it  any  rules 
of  procedure.  Its  first  task,  therefore,  is  that  of  effecting 
an  organization  and  of  adopting  rules  to  govern  its  proceed- 
ings. This  done,  the  whole  work  of  legislation  must  be 
begun  anew.  No  such  condition  obtains  in  the  other 
branches.  The  new  officers  take  up  pending  matters  where 


332      THE  GOVERNMENT  OF  MODERN  STATES 

the  old  officers  left  off.  The  offices  as  offices  thus  have  a 
continuous  existence. 

It  is  not  an  easy  matter  to  explain  how  this  system  came 
into  existence  or  to  justify  it  from  the  standpoint  of  effi- 
ciency in  its  practical  operation.  The  explanation  of  its 
rise  is  found  in  the  belief  that  at  relatively  frequent  intervals 
the  people  should  be  given  an  opportunity  to  determine  whom 
they  want  to  represent  them  and  that  their  new  representa- 
tives should  have  a  free  hand.  It  would  seem,  however, 
that  this  could  be  secured  without  the  provision  that  the 
whole  work  of  organizing,  adopting  new  rules,  and  begin- 
ning work  anew  should  be  required.  This  feature,  notwith- 
standing its  importance,  is  not,  however,  one  to  which 
further  attention  need  be  given,  since  it  is  so  firmly  estab- 
lished, and  so  little  demand  exists  for  its  change,  that  con- 
sideration of  it  would  have  only  an  academic  interest. 

The  question  of  the  precise  length  of  life  that  shall  be 
given  to  legislatures  and  that  of  the  authority  of  chief  execu- 
tives to  bring  them  to  an  end  by  ordering  a  dissolution  of 
the  lower  house  are,  however,  matters  of  direct  practical 
importance.  The  first  of  these  we  have  already  considered 
under  the  heading  "  Determination  of  the  composition  and 
method  of  selection  of  members  of  the  legislative  branch." 
Consideration  of  the  second  will  be  had  in  the  chapter  deal- 
ing with  the  organization  of  the  executive  branch  of  the 
government. 

Legislative  bodies  in  still  another  way  have  a  discontinu- 
ous existence.  With  few  or  no  exceptions  legislatures  break 
up  their  proceedings  into  what  are  known  as  sessions.  Usu- 
ally provision  is  made  for  a  session  each  year.  These  are 
known  as  ordinary  or  regular  sessions.  In  addition  the 
power  is  usually  granted  to  the  chief  executive  to  summon 
them  in  special  or  extra  sessions  or  for  the  legislature  so  to 


THE  LEGISLATIVE  BRANCH  333 

assemble  on  its  own  initiative.  These  interruptions  are 
of  entirely  a  different  character  from  those  that  take  place 
between  old  and  new  legislatures.  A  second  session  of  an 
existing  legislature  finds  itself  fully  organized  and  equipped 
with  rules  of  procedure,  and  takes  up  the  work  under  way 
where  it  last  left  off.  The  reason  for  thus  breaking  up  the 
work  of  legislatures  into  sessions  consists  partly  in  the  fact 
that  the  work  to  be  done  does  not  require  that  legislatures 
shall  remain  in  continuous  session,  and  partly  in  order  to 
give  an  opportunity  to  legislators  to  return  to  their  con- 
stituencies and  look  after  their  interests  in  respect  to  secur- 
ing a  reelection  to  office.  In  the  individual  states  of  the 
United  States  the  amount  of  work  falling  upon  the  legisla- 
tive branch  is  so  small  that  in  many  states  legislatures  con- 
vene only  every  other  year  and  remain  in  session  for  only  a 
couple  of  months  or  so.  In  the  case  of  our  national  gov- 
ernment, however,  the  burden  of  work  falling  upon  this 
branch  in  recent  years  has  been  so  great  that  Congress  has 
remained  in  almost  continuous  session  throughout  the  year. 
Determination  of  the  Powers  and  Privileges  of  Legis- 
latures.— A  very  special  class  of  questions  that  has  to  be 
solved  in  providing  for  the  organization  of  the  legislative 
branch  of  government  is  that  of  the  special  powers  and  pre- 
rogatives that  shall  be  conferred  upon  it  and  its  members 
in  order  that  they  may  properly  perform  their  duties. 
These  powers  and  prerogatives,  or  privileges,  as  they  are 
sometimes  called*,  have  for  the  most  part  to  do  with  the 
matter  of  ensuring  independence  on  the  part  of  the  legisla- 
ture. For  centuries,  indeed  during  the  greater  part  of  its 
history,  the  English  Parliament  had  to  wage  a  bitter  struggle 
against  the  King  to  prevent  the  latter  from,  not  only  inter- 
fering with  its  work,  but  of  arresting  and  sending  to  execu- 
tion those  members  who  ^opposed  too  strongly  his  wishes. 


334      THE  GOVERNMENT  OF  MODERN  STATES 

The  whole  question  of  political  liberty  was  at  stake.  To 
secure  its  independence,  Parliament  found  it  necessary  to 
insist  upon  the  recognition  of  its  possession  of  certain 
fundamental  powers  and  privileges.  Among  these  the  most 
important  were  the  right  to  choose  its  own  officers,  to  formu- 
late its  own  rules  of  procedure,  to  be  the  judges  of  the  elec- 
tions and  qualifications  of  its  own  members,  to  control  the 
conduct  of  its  members  by  disciplinary  measures  and,  if 
need  be,  to  suspend  or  expel  them,  to  enjoy  liberty  of  speech, 
that  is,  not  to  be  subject  to  judicial  or  other  proceedings  for 
any  of  their  utterances  in  the  performance  of  their  duties, 
and  to  be  free  from  arrest  while  Parliament  was  in  session. 

The  possession  of  all  of  these  powers  and  privileges  by  a 
legislature  is  now  generally  recognized  as  essential  if  that 
branch  of  the  government  is  to  enjoy  freedom  of  action  and 
immunity  from  undue  control  by  the  executive  and  judicial 
branches  of  government.  Provision  for  all  of  these  is  thus 
found  in  the  constitution  of  the  United  States  and  the  indi- 
vidual states,  and  is  also  generally  found  in  the  constitutions 
of  other  States  having  a  popular  government. 

There  are  two  other  powers  enjoyed  by  legislative  bodies, 
the  scope  and  character  of  which  are  not  so  clearly  estab- 
lished. These  consist  in  the  right  of  the  legislature  to  com- 
pel the  attendance  of,  and  giving  of  testimony  by,  private 
individuals  when  information  is  desired  by  that  body,  and 
in  making  similar  calls  upon  the  executive.  In  respect  to 
the  first,  the  matter  at  issue  is,  not  so  much  the  right,  as  the 
means  that  may  be  employed,  in  compelling  compliance  with 
its  wishes.  In  respect  to  the  latter,  it  is  now  generally  recog- 
nized that,  in  the  case  of  the  government  of  the  United 
States  at  least,  the  President  may  refuse  to  comply  with  re- 
quests for  information  if  he  deems  that  the  giving  of  such 
information  will  be  prejudicial  to  the  public  welfare.  This 


THE  LEGISLATIVE  BRANCH  335 

applies  especially  in  respect  to  all  matters  falling  within  the 
scope  of  his  executive  powers. 

Determination  of  the  Methods  of  Procedure  of  Legis- 
latures.—  Of  the  several  heads  under  which  the  organiza- 
tion and  administration  of  the  legislative  branch  of  govern- 
ment is  being  considered,  none  is  of  greater  importance 
than  that  of  the  determination  of  the  methods  that  shall  be 
employed  by  that  branch  in  the  performance  of  its  duties. 
The  manner  in  which  a  legislative  body  organizes  itself  and 
the  rules  that  it  adopts  to  govern  its  proceedings  determine 
in  no  small  degree  the  character  of  the  governmental  system 
resulting.  This  is  strikingly  illustrated  in  the  case  of  the 
English  government.  A  study  of  that  government  shows 
that  its  most  essential  features,  the  manner  in  which  the 
ministry  is  selected,  the  dependence  of  that  organ  upon  hav- 
ing a  majority  in  the  House  of  Commons  in  order  to  con- 
tinue in  office,  and  its  control  over  legislation,  indeed  the 
whole  system  of  Responsible  Government,  are  but  matters 
of  legislative  organization  and  procedure.  It  is  hardly 
going  too  far  to  say  that  the  system  of  government  that 
England  now  has,  has  come  into  existence  as  the  result  of 
the  Parliament  determining  the  organization  that  it  shall 
have  and  rules  that  shall  govern  its  proceedings. 

Though  this  is  not  equally  true  of  governments  whose 
general  character  has  been  fixed  in  written  constitutions,  the 
matter  of  legislative  organization  and  procedure  adopted  by 
them  will  nevertheless  be  found  to  be  of  supreme  importance 
in  determining  the  character  of  government  actually  result- 
ing. Certainly  this  is  so  of  our  own  government.  If  one 
were  seeking  to  point  out  the  most  important  features  of 
our  government  in  its  practical  operations,  a  leading  place 
would  have  to  be  given  to  such  features  as :  the  position  and 
powers  of  the  Speaker  of  the  House;  the  organization  of 


336      THE  GOVERNMENT  OF  MODERN  STATES 

the  two  houses  in  committees;  the  rules  and  conventions 
governing  the  selection  of  these  committees  and  determining 
their  powers ;  the  character  and  functions  of  such  organs  as 
the  Committee  on  Rules  of  the  House,  the  Steering  Com- 
mittee of  the  Senate,  and  Legislative  Caucuses  in  the  formu- 
lation and  adoption  of  legislative  programs ;  and  the  whole 
procedure  that  has  been  adopted  for  the  initiation,  considera- 
tion and  taking  of  action  upon  legislative  proposals.  All 
of  these  are  matters  of  legislative  organization  and  pro- 
cedure. 

A  most  important  aspect  of  these  fundamental  features 
of  our  government  is  that  only  in  slight  degree  are  they 
ones  determined  or  regulated  either  by  the  constitution  or 
statutes.  For  the  most  part  they  exist,  and  the  methods  of 
their  operation  are  determined,  by  rules  adopted  by  the  two 
houses  and  by  conventions  which,  though  unformulated,  yet 
have  controlling  force.  The  whole  system  of  congressional 
organization  and  procedure  as  it  now  exists  is  thus  one  of 
gradual  evolution.  It  is  one  .moreover  which  is  constantly 
undergoing  change.  But  a  few  years  ago  the  Speaker  of 
the  House  occupied  a  position  of  power  far  superior  to  that 
which  he  now  has.  The  development  of  the  dominant  posi- 
tion now  occupied  by  the  Committee  on  Rules  of  the  House 
in  determining  what  measures  shall  receive  consideration 
and  the  conditions  under  which  such  considerations  shall 
be  had  is  a  comparatively  modern  phenomenon.  At  the 
present  time  there  is  a  strong  demand  for  the  adoption  by 
the  national  government  of  what  is  known  as  a  scientific 
budget  system.  If  this  is  done,  a  thorough  reorganization 
of  the  whole  system  of  committees  for  the  consideration  of 
appropriation  bills  and  of  procedure  in  taking  action  upon 
such  measures  will  be  required. 

It  is  manifestly  impracticable  for  us  here  to  attempt  a 


THE  LEGISLATIVE  BRANCH  337 

consideration  of  the  details  of  the  problem  that  is  presented 
in  working  out  a  satisfactory  legislative  organization  and 
procedure.  All  that  can  be  done  is  to  point  out  that  here 
exists  one  of  the  most  important  problems  of  government 
and  that,  according  as  it  is  worked  out  in  one  way  or  an- 
other, the  whole  character  of  the  governmental  system  re- 
sulting is  vitally  affected. 


CHAPTER  XIV 

THE   EXECUTIVE   BRANCH 

In  considering  the  executive  branch  of  government,  it  is 
necessary  at  all  times  to  keep  in  mind  the  distinction  between 
it  and  the  administrative  branch.  If  this  is  done,  it  will  be 
found  that  this  branch,  notwithstanding  its  importance, 
offers  but  relatively  few  problems  for  solution.  This  arises 
from  the  fact  that  the  field  of  purely  executive  duties  has 
now  become  fairly  accurately  denned  and  that  such  duties 
require  no  elaborate  machinery  for  their  performance.  In 
point  of  fact  it  will  be  found  that  this  branch  consists  of 
little  more  than  the  single  office  of  chief  executive.  In  large 
part,  therefore,  the  problems  of  this  branch  consist  simply  in 
the  determination  of  the  functions  of  the  executive,  the 
qualifications  that  shall  be  required  of  the  chief  executive, 
how  he  shall  be  selected,  by  what  tenure  he  shall  hold  office, 
the  conditions  under  which  he  may  be  removed,  etc.,  and 
the  relations  that  he  shall  have  to  the  other  branches  of 
government. 

The  Functions  of  the  Executive  Branch. —  Though  we 
have  necessarily  had  to  consider  the  functions  of  the  chief 
executive  in  our  consideration  of  the  classification  of  gov- 
ernmental functions  and  examination  of  the  question  of  the 
union  or  separation  of  powers,  it  is  nevertheless  desirable 
that  these  functions  should  again  be  enumerated  in  this 
place.  Briefly  stated,  they  are :  that  the  chief  executive  shall 
be  the  titular  head  of  the  government,  and  as  such,  repre- 
sent it  in  all  cases  where  it  needfe  a  spokesman ;  that  he  shall 

338 


THE  EXECUTIVE  BRANCH  339 

especially  represent  the  government  in  all  of  its  relations 
with  other  States;  that,  to  this  end,  he  shall  be  the  com- 
mander-in-chief  of  the  armed  forces  of  the  government; 
that  he  shall  be  the  officer  to  exercise  the  quality  of  mercy 
as  evidenced  in  the  power  to  grant  reprieves  and  pardons; 
and,  finally,  that  he  shall  have  the  general  duty  of  seeing  that 
the  laws  of  the  land  are  duly  enforced. 

These  are  the  powers  or  functions  that  are  very  generally 
deemed  to  fall  within  the  executive  branch  of  government. 
All  of -them  are  enjoyed  by  the  chief  executive  of  the  United 
States.  There  are,  however,  certain  other  powers  possessed 
by  chief  executives  of  other  governments  that  are  of  great 
importance.  Among  these,  much  the  most  important  is 
that  in  respect  to  the  power  of  the  chief  executive  to  sum- 
mon, prorogue,  or  dissolve  the  legislature.  This  is  a  mat- 
ter of  such  importance  that  it  is  given  special  consideration 
where  the  subject  of  the  relations  of  the  chief  executive 
to  all  other  branches  of  government  is  taken  up. 

The  Office  of  Chief  Executive. —  In  all  governments  it 
has  been  found  desirable,  if  indeed  it  is  not  indispensable, 
that  the  executive  powers  shall  be  legally  or  nominally 
vested  in  a  single  person.  The  nearest  departure  from  this 
practice  is  found  in  the  governments  of  England  and 
Switzerland.  In  the  former  of  these  two  governments,  the 
possession  and  the  actual  exercise  of  the  executive  powers 
are  carefully  distinguished.  Legally  the  King  is  the  pos- 
sessor of  all  executive  authority  and  all  executive  acts  must 
be  performed  in  his  name.  Actually,  however,  the  ministry 
of  the  day  decides  how  this  authority  shall  be  exercised. 
To  use  an  English  expression,  the  office  has,  as  it  were, 
been  put  into  commission.  In  Switzerland,  provision  is 
made  for  a  chief  executive,  known  as  President.  Actually, 
however,  this  officer  must  exercise  his  authority  in  accord- 


340      THE  GOVERNMENT  OF  MODERN  STATES 

ance  with  the  wishes  and  instructions  of  the  Assembly.  The 
system  resulting  is  thus  one  analogous  to  that  of  England. 
The  best  example  of  the  executive  power  being  both  vested 
in,  and  actually  exercised  by,  a  single  chief  executive  is 
afforded  by  a  monarchy  of  the  autocratic  type.  Among 
Popular  Governments  the  leading  example  of  such  a  union 
of  possession  and  exercise  of  this  power  is  undoubtedly  af- 
forded by  our  own  government.  Though,  as  we  will  see, 
the  President  is  subject  to  a  certain  measure  of  control  in 
respect  to  the  performance  of  certain  of  his  executive  pow- 
ers, his  personal  individual  powers  in  this  field  are  enor- 
mous. There  are  indeed  few  chief  executives  having 
greater  power  in  this  respect. 

In  this  connection  it  is  of  interest  to  note  that  one  of  the 
great  elements  of  weakness  of  the  government  established, 
after  our  Declaration  of  Independence,  under  what  were 
known  as  the  Articles  of  Confederation,  was  the  failure  to 
provide,  in  that  scheme  of  government,  for  a  chief  executive. 
The  troubles  resulting  from  this  failure  undoubtedly  were 
largely  influential  in  bringing  about  such  a  large  and  definite 
grant  of  executive  powers  to  the  President  in  our  present 
form  of  government. 

Qualifications  of  Chief  Executive. —  The  matter  of  the 
qualifications  required  of  persons  in  order  that  they  may 
hold  the  office  of  chief  executive  is  one  giving  rise  to  little 
or  no  trouble.  When  this  office  is  filled  by  hereditary  de- 
scent, the  only  additional  qualification  required  is  usually 
that  of  sex.  In  some  cases  only  males,  and  in  other  cases, 
both  males  and  females,  meeting  the  required  conditions  in 
respect  to  descent  are  eligible.  If  the  person  so  entitled  to 
office  is  a  minor  under  a  certain  age, --provision,  however,  is 
usually  made  for -the  selection  of  a  regent  to  act  for  him  or 
her  until  he  or  she  becomes  of  the  required  age.  The  quali- 


THE  EXECUTIVE  BRANCH  341 

fication  of  mental  capacity  indeed  is  not  usually  required, 
such  cases  being  met  by  the  selection  of  a  regent  as  in  the 
case  of  a  chief  executive  who  is  under  age. 

In  the  case  of  governments  whose  chief  executives  are 
selected  by  some  method  of  election,  the  qualifications  re- 
quired rarely  go  beyond  those  of  sex,  age,  nativity  and 
citizenship.  In  our  own  government  the  only  qualifications 
required  are  that  "  no  person  except  a  natural  born  citizen 
or  a  citizen  of  the  United  States  at  the  time  of  the  adoption 
of  this  constitution  shall  be  eligible  to  the  office  of  President ; 
neither  shall  any  person  be  eligible  to  that  office  who  shall 
not  have  attained  the  age  of  35  years  and  been  14  years  a 
resident  within  the  United  States." 

Method  of  Selection  of  Chief  Executive. —  Undoubt- 
edly one  of  the  most  important  problems  presented  in  pro- 
viding for  the  exercise  of  the  executive  power  is  that  of 
determining  the  method  that  shall  be  employed  in  selecting 
the  chief  magistrate.  In  respect  to  this  the  issue  in  the 
first  place  lies  between  the  two  methods  of:  selection  in 
accordance  with  some  hereditary  principle ;  and  selection  by 
some  method  of  election.  It  is  not  our  intention  to  consider 
the  relative  merits  of  these  two  systems.  It  may  be  stated, 
however,  that  strong  arguments  can  be  advanced  in  favor 
of  both.  The  greatest  argument  in  favor  of  the  first  lies 
in  the  fact  that  this  most  important  act  is  definitely  deter- 
mined in  accordance  with  fixed  principles  and  is  thus  taken 
out  of  the  domain  of  popular  strife.  If  one  surveys  the 
history  of  Popular  Government  since  its  widespread  de- 
velopment in  the  nineteenth  century,  it  will  be  found  that 
the  system  of  selecting  a  chief  magistrate  by  some  method 
of  election  has,  in  the  case  of  the  majority  of  nations,  given 
rise  to  acute  disturbances  and  often  to  bloodshed  and  revolu- 
tion. The  experience  of  Mexico  and  other  Latin-American 


342      THE  GOVERNMENT  OF  MODERN  STATES 

countries  in  this  respect  furnishes  the  most  striking  examples 
of  this.  The  difficulties  inherent  in  this  method  are  such 
that  it  is  a  question  whether  it  is  possible  to  devise  a  system 
of  election  that  will  give  good  results  in  practice  in  a  coun- 
try which  has  not  reached  an  advanced  stage  of  political 
development.  It  was  due  to  an  appreciation  of  these  diffi- 
culties that  the  abortive  attempt  of  Yuan  Shi  Kai,  the  late 
President  of  China,  to  convert  the  government  of  that  coun- 
try from  a  Republic  to  a  Constitutional  Monarchy  was 
looked  upon  by  many  as  a  step  calculated  to  stabilize  politi- 
cal conditions  in  that  country. 

The  great  objection  to  the  system  of  selection  by  heredi- 
tary descent  is  the  uncertainty  as  to  whether  a  competent 
person  will  be  secured  in  this  way.  The  importance  of  this 
consideration  is  very  much  lessened  where  the  chief  execu- 
tive, as  under  the  English  system,  is  only  nominally  the 
custodian  of  executive  authority,  the  real  exercise  of  this 
authority  being  in  a  body  otherwise  selected.  It  is  due  to 
this  that  the  English  hold  that  their  monarchical  system  has 
all  the  advantages  of  the  system  of  an  elected  chief  execu- 
tive with  none  of  its  disadvantages. 

This  question  of  the  relative  merits  of  the  hereditary  and 
elective  systems  of  selecting  a  chief  executive  is,  however, 
one  now  having  little  more  than  an  academic  interest  for 
those  peoples  who  have  definitely  adopted  a  republican  form 
of  government.  To  them  the  idea  of  a  monarchical  govern- 
ment is  so  distasteful  that  the  matter  is  no  longer  one  of 
weighing  the  relative  technical  merits  of  the  two  systems. 
To  such  peoples,  the  problem  thus  resolves  itself  into  that 
of  the  particular  method  to  be  employed  in  selecting  a  chief 
executive  through  a  process  of  election. 

Considering  the  problem  from  this  standpoint,  it  will  be 
found  that,  though  the  systems  employed  by  Republican 


THE  EXECUTIVE  BRANCH  343 

Governments  differ  widely  in  detail,  they  all  fall  under  one 
or  the  other  of  the  following  three  heads:  (i)  election  by 
popular  vote  or  by  what  is  known  as  a  plebiscite,  (2)  election 
by  the  legislature,  (3)  election  by  a  special  electoral  college. 
A  few  words  will  be  said  regarding  each  of  these  methods. 

Election  of  Chief  Executive  by  Popular  Vote  or  a 
Plebiscite. —  The  election  of  the  chief  executive  of  a  gov- 
ernment by  popular  vote  would  seem  to  be  the  method  most 
logically  to  be  followed  by  a  people  having  adopted  a  gov- 
ernment resting  upon  the  principle  of  popular  sovereignty. 
It  is  the  one  which  we  would,  therefore,  expect  to  be  fol- 
lowed unless  grave  practical  objections  can  be  brought 
against  it.  In  point  of  fact  this  is  the  method  that  is  usually 
employed  in  the  selection  of  the  chief  magistrates  of  all  the 
subordinate  units  of  a  Popular  Government,  such  as  constitu- 
ent states,  municipalities,  etc.  To  a  considerable  extent  it 
is  even  employed  in  respect  to  such  units  in  monarchical  and 
autocratic  governments. 

When,  however,  we  turn  from  such  subordinate  govern- 
ments to  general  or  central  governments  we  find  no  modern 
States,  except  possibly  those  of  Latin-America,  making  use 
of  this  system  as  its  legally  established  system.  France 
adopted  this  system  in  the  establishment  of  the  Second  Re- 
public in  1848,  but  abandoned  it  in  the  establishment  of  her 
Third  Republic  in  1871.  Her  reason  for  doing  so  was  that 
Louis  Napoleon  made  use  of  this  system,  first  to  secure  his 
election  as  President,  and  later  to  secure  an  endorsement  of 
his  coup  d'etat  by  which  he  made  himself  Emperor.  The 
system,  it  was  held,  lent  itself  to  the  creation  of  a  dictator- 
ship and  the  overthrow  of  the  system  of  Republican  Gov- 
ernment. 

There  can  be  no  doubt  that  it  was  due  to  considerations 
such  as  this  that  led  to  the  definite  rejection  of  this  system 


344      THE  GOVERNMENT  OF  MODERN  STATES 

by  those  responsible  for  the  framing  of  the  government  of 
the  United  States.  We  have  pointed  out  that  the  framers 
of  our  constitution  were  as  solicitous  of  avoiding  what  were 
believed  to  be  the  dangers  of  a  Democracy  as  they  were 
those  of  an  Autocratic  Monarchy.  The  election  of  the  chief 
executive  by  popular  vote  they  looked  upon  as  essentially  a 
democratic  device,  as  one  calculated  to  divide  the  country 
into  hostile  parties,  and  as  giving  rise  to  the  danger  that  a 
President  once  elected  might  use  this  method  of  appealing 
to  the  people  to  perpetuate  himself  in  power.  Due  to  this, 
they  devised  the  peculiar  method  of  selecting  this  officer 
which  will  be  described  when  we  consider  the  third  method 
of  election,  that  through  the  use  of  a  special  electing  body  or 
electoral  college,  as  it  is  more  technically  known.  In  point 
of  fact  this  intention  on  the  part  of  the  framers  of  our  con- 
stitution has  been  completely  defeated,  since  the  system  thus 
created  has  been  so  worked  in  practice  as  to  establish  what 
is  in  effect  a  system  of  election  by  popular  vote.  If  one 
considers  the  American  system  as  it  actually  exists  in  work- 
ing operation,  it  is,  therefore,  one  of  election  by  popular 
vote. 

Election  of  Chief  Executive  by  the  Legislature. —  The 
second  system  of  selecting  a  chief  executive  by  a  method  of 
election  is  that  of  entrusting  the  election  to  the  legislature. 
This  system,  while  having  a  less  democratic  character,  is 
thoroughly  consonant  with  the  principles  of  Representative 
Government,  since  the  persons  constituting  the  legislature 
have  been  elected  by  the  people,  and  in  this  duty  act  as  the 
representatives  of  the  latter  in  the  same  way  as  they  do  in 
performing  their  legislative  duties.  This  is  the  system  that 
is  now  followed  by  France  and  Switzerland.  There  can  be 
no  doubt  that  it  has  given  excellent  results  in  practice.  In 


THE  EXECUTIVE  BRANCH  345 

those  countries  the  election  of  a  President  takes  place  with 
little  or  no  popular  disturbances. 

Election  of  Chief  Executive  by  a  Specially  Constituted 
Electoral  College. —  The  third  method  of  selecting  a  chief 
executive  through  an  elective  process  is  that  of  entrusting 
this  duty  to  a  specially  constituted  body  known  as  an  elec- 
toral college.  This  is  the  system  which  legally  exists  in  the 
United  States.  The  provisions  of  the  constitution  relative 
to  this  are :  that  each  state  shall  appoint,  in  such  manner  as 
its  legislature  may  determine,  a  number  of  electors  equal  to 
the  total  number  of  Senators  and  Representatives  to  which 
it  is  entitled  in  Congress;  that  these  electors  shall  meet  in 
their  respective  states  and  vote  by  ballot  for  President  and 
Vice  President;  and  that  the  result  of  such  balloting  shall 
be  forwarded  to  the  President  of  the  Senate  of  the  United 
States,  who  shall  open  and  count  such  ballots  in  the  presence 
of  the  Senate  and  House  of  Representatives  jointly  assem- 
bled and  declare  the  result.  The  person  securing  the  great- 
est number  of  votes  cast  for  President,  if  a  majority  of  the 
votes  cast,  is  declared  elected  President,  and  the  person  re- 
ceiving the  largest  number  of  votes  cast  for  Vice  President, 
if  a  majority  of  the  votes  cast,  is  declared  elected  Vice 
President.  If  no  person  receives  a  majority  of  the  votes 
for  President,  the  House  of  Representatives  must  thereupon 
proceed  to  the  election  of  a  President  from  among  the  three 
persons  receiving  the  largest  number  of  votes;  and  if  no 
person  receives  a  majority  of  the  votes  cast  for  Vice  Presi- 
dent, the  Senate  must  make  a  selection  between  the  two 
receiving  the  largest  number  of  votes  for  that  office.  The 
House  in  making  the  election  of  President  must  vote  by 
states,  each  state  having  one  vote,  and  the  votes  of  a  ma- 
jority of  the  states  are  required  for  election. 


346      THE  GOVERNMENT  OF  MODERN  STATES 

We  have  already  pointed  out  why  the  framers  of  the  con- 
stitution rejected  the  method  of  selecting  a  President  and 
Vice  President  by  popular  vote.  The  method  of  having 
these  officers  elected  by  Congress,  except  as  a  last  resort,  was 
rejected  because  they  deemed  that  this  would  do  violence 
to  the  separation  of  powers  upon  which  they  laid  great 
stress.  They  feared  that  if  the  President  and  Vice  Presi- 
dent owed  their  positions  to  Congress,  they  would  not  have 
the  independence  of  that  body  which  in  their  opinion  it  was 
desirable  that  they  should  have. 

In  practice,  as  has  been  pointed  out,  the  intent  of  the 
framers  of  the  constitution  in  respect  to  having  the  Presi- 
dent and  Vice  President  elected  by  a  special  body  composed 
of  the  wise  men  of  the  country,  and  using  their  best  judg- 
ment in  respect  to  who  were  best  qualified  to  fill  those  offi- 
ces, has  been  wholly  defeated.  This  arose  in  the  following 
way.  In  the  first  place  the  states  uniformly  adopted  the 
method  of  having  their  presidential  electors  elected  by  popu- 
lar vote.  The  several  political  parties  thereupon  adopted 
the  practice  of  putting  in  nomination  as  candidates  for  this 
office  persons  who  were  pledged  in  advance  to  cast  their 
votes,  if  elected,  for  the  nominees  of  the  parties  for  Presi- 
dent and  Vice  President.  The  result  was  to  establish  what 
is  in  effect  the  system  of  selecting  a  chief  executive  by  popu- 
lar vote,  the  vote,  however,  taking  place  by  states  instead  of 
by  the  country  as  a  whole.  In  consequence  of  this  latter 
provision,  it  sometimes  happens  that  a  President  is  elected 
who  has  received  only  a  minority  of  the  total  number  of 
votes  cast  by  the  people. 

Succession  to  the  Office  of  Chief  Executive. —  Where  a 
chief  executive  holds  office  by  hereditary  right  the  question 
of  succession  in  case  of  the  death  of  the  incumbent  is  auto- 
matically solved.  This  feature  indeed  constitutes  the  chief 


THE  EXECUTIVE  BRANCH  347 

advantage  of  that  method  of  selection.  Where  he  is  elected 
by  the  legislature,  the  problem  of  succession  to  office  is  also 
a  comparatively  simple  one,  since  the  legislature  can  always 
be  promptly  assembled  to  elect  a  new  incumbent.  This  also 
is  one  of  the  advantages  of  that  system.  Where  the  chief 
executive  is  elected  by  a  popular  vote,  or  by  an  electoral  col- 
lege involving  a  popular  vote,  such  as  is  the  case  in  our  gov- 
ernment, the  matter  of  succession  in  the  case  of  the  sudden 
death  or  physical  disability  of  the  chief  executive,  is  of 
great  importance.  In  respect  to  this  matter  the  constitu- 
tion of  the  United  States  provides  that  "  in  case  of  removal 
of  the  President  from  office,  or  of  his  death,  resignation  or 
inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice  President  and  the 
Congress  may  by  law  provide  for  the  case  of  removal,  death, 
resignation  or  inability,  both  of  the  President  and  Vice 
President,  declaring  what  officer  shall  then  act  as  President 
and  such  officer  shall  act  accordingly  until  disability  be  re- 
moved or  a  President  shall  be  elected." 

This  provision  has  not  been  found  to  be  satisfactory  in 
all  respects.  For  one  thing,  it  failed  to  make  provision  for 
case  of  a  failure  on  the  part  of  the  House  of  Representatives 
to  elect  a  President  when  the  election  was  thrown  into  that 
body.  This  omission  was  corrected  by  the  Twelfth  Amend- 
ment adopted  September  25,  1804,  which,  among  other 
things,  provided  that  "  if  the  House  of  Representatives  shall 
not  choose  a  President,  whenever  the  right  of  choice  shall 
devolve  upon  them,  before  the  Fourth  day  of  March  next 
following,  then  the  Vice  President  shall  act  as  President  as 
in  the  case  of  the  death  or  other  constitutional  disability  of 
the  President." 

Again  it  failed  to  specify  what  organ  should  be  the  judge 
as  to  when  a  President  shall  be  deemed  to  be  unable  to  dis- 


348      THE  GOVERNMENT  OF  MODERN  STATES 

charge  the  duties  of  his  office.  This  case  arose  concretely 
when  President  Garfield  lay  for  so  long  a  time  physically 
incapacitated  for  the  discharge  of  his  duties  as  President 
as  the  result  of  an  assassin's  bullet.  There  being  no  organ 
competent  under  the  constitution  to  declare  his  inability  he 
continued  to  remain  President  until  his  death. 

The  provision  that  the  Vice  President  shall  succeed  to  the 
office  of  President  in  case  of  the  death  or  removal  of  the 
President  is  unsatisfactory  since  it  rarely  happens  that  a 
Vice  President  has  been  selected  with  a  view  to  this  con- 
tingency. Often  he  has  been  selected  as  a  matter  of  politi- 
cal expediency  to  placate  a  minority  or  dissident  wing  of  the 
party.  When  Johnson  succeeded  to  the  Presidency  upon 
the  death  of  Lincoln  he  found  himself  completely  at  outs 
with  his  party,  the  friction  at  last  becoming  so  great  that 
impeachment  proceedings  were  brought  against  him  and  he 
only  failed  of  impeachment  by  a  single  vote. 

The  matter  of  succession  to  the  Presidency  in  case  of  the 
death,  removal  or  disability  of  both  the  President  and  Vice 
President  has  been  settled  by  law  in  different  ways  at  dif- 
ferent times.  The  law  now  in  force  was  adopted  in  1886 
and  fixes  the  succession  in  the  following  officers  in  the  order 
named:  Secretary  of  State,  Secretary  of  the  Treasury, 
Secretary  of  War,  Attorney-General,  Postmaster  General, 
Secretary  of  the  Navy,  and  Secretary  of  the  Interior.  This 
order  corresponds  to  the  chronological  order  in  which  these 
offices  were  created. 

The  Independence  of  the  Chief  Executive  in  the  Per- 
formance of  his  Executive  Duties. —  In  distinguishing  be- 
tween executive  and  administrative  powers  we  have  pointed 
out  that  what  distinguishes  the  former  from  the  latter  more 
than  anything  else  is  thajU-they  are  essentially  of  a  discre- 
tionary character,  while  the  latter  involve  no  such  quality 


THE  EXECUTIVE  BRANCH  349 

except  in  respect  to  the  particular  means  to  be  employed  in 
putting  into  execution  decisions  already  arrived  at.  It  fol- 
lows from  this  that  the  executive  should  be  given  a  large 
measure  of  independence,  if  not  complete  independence,  in 
the  discharge  of  these  functions.  Certainly  this  is  so  when 
the  government  is  one  of  a  separation  of  powers.  This 
means  that  neither  the  legislative  nor  the  judicial  branch 
shall  have  the  power  either  to  direct  the  executive  how  he 
shall  discharge  these  duties  or  to  hold  him  to  account  for  the 
manner  in  which  he  does  so.  This,  however,  does  not  pre- 
vent the  provision  in  a  constitution  that  certain  acts  shall 
not  be  deemed  to  fall  within  the  executive  power,  or  that 
certain  of  the  powers  possessed  by  the  executive  may  only  be 
exercised  in  conjunction  with,  or  upon  the  approval  of,  the 
legislature. 

Under  our  government  the  only  limitations  upon  the 
President  in  the  exercise  of  his  executive  powers  are  that 
war  can  be  declared  only  by  Congress  and  that  the  making 
of  treaties  with  foreign  powers  and  certain  specified  ap- 
pointments shall  be  done  by  and  with  the  advice  and  ap- 
proval of  the  Senate.  With  these  exceptions  the  President 
has  complete  independence  in  respect  to  the  exercise  of  his 
executive  as  distinguished  from  his  administrative  powers. 
In  his  hands  alone  lie  the  conduct  of  foreign  relations,  the 
decision  in  respect  to  the  negotiation  of  treaties,  the  recog- 
nition of  the  governments  of  foreign  States,  and  the  reprieve 
or  pardon  of  persons  convicted  of  crime  against  the  United 
States.  Any  attempt  on  the  part  of  Congress  or  the  courts 
to  dictate  to  or  control  him  in  the  exercise  of  these  powers  is 
without  avail.  Repeatedly  Congress  has  attempted  to  exer- 
cise a  voice  in  determining  the  conduct  of  foreign  affairs  by 
the  passage  of  resolutions  providing  for  the  recognition  of 
some  foreign  government,  or  the  taking  of  some  other  action 


350      THE  GOVERNMENT  OF  MODERN  STATES 

in  the  field  of  foreign  relations.  Invariably  the  President 
has  ignored  such  action  and  has  stated  that  he  did  so  since 
his  recognition  of  it  would  represent  an  acquiescence  on  his 
part  in  an  infringement  of  the  constitutional  rights  of  the 
executive. 

In  respect  to  the  waging  of  war,  while  the  President  can- 
not declare  war,  that  being  a  duty  entrusted  to  Congress, 
he  can  recognize  that  a  state  of  war  exists.  This  he  did  in 
the  case  of  our  great  civil  war.  Furthermore,  he  can  so 
formulate  foreign  policies  and  direct  acts  to  be  done  as 
will  make  war  almost  inevitable.  The  sending  of  troops 
into  Mexico  in  the  pursuit  of  the  bandit,  Francisco  Villa, 
and  the  occupation  of  Vera  Cruz  by  the  American  army  are 
recent  examples  of  the  extent  to  which  the  President  may 
take  action  of  a  belligerent  character  upon  his  own  iniative 
and  judgment  and  without  any  declaration  of  war  on  the 
part  of  Congress. 

After  war  has  actually  broken  outj-the  powers  of  the 
President  as  commander-in-chief  of  the  armed  forces  are 
almost  autocratic  in  respect  to  the  determination  as  to  how 
military  operations  shall  be  carried  on,  and  what  other 
things  shall  be  done  as  a  necessary  feature  of  making  these 
operations  successful.  The_jexjercise--el--these  powers,  how- 
ever, is  subject  to  the  limitation  that  the  determination  of 
what  armed  forces  shall  be  provided  and  the  voting  of  the 
money  necessary  for  the  prosecution  of  military  operations 
rest  with  Congress,  as  a  part  of  its  general  legislative  func- 
tion. 

Relations  of  the  Chief  Executive  to  the  Other 
Branches  of  Government. —  Of  all  questions  having  to  do 
with  the  Executive  Branch  none  is  of  greater  importance 
than  that  of  the  relations  that  shall  exist  between  the  chief 
executive,  constituting  this  branch  and  the  other  branches 


THE  EXECUTIVE  BRANCH  351 

of  government.  This  is  a  subject  which  has  necessarily 
been  touched  upon  in  our  consideration  of  the  classification 
and  the  union  or  separation  of  government  powers.  It  will 
also  have  to  receive  consideration  in  our  treatment  of  the 
judicial  and  administrative  branches.  It  may  here  be 
stated,  however,  that  in  respect  to  the  administrative  and 
judicial  branches  the  function  of  the  chief  executive  as 
chief  executive  consists  simply  in  seeing  that  the  laws  re- 
garding, or  to  be  administered  by,  those  branches  are  duly 
enforced.  As  will  hereafter  be  pointed  out,  in  most  gov- 
ernments and  especially  in  our  own,  the  chief  executive  has 
been  given  the  general  status  and  powers  of  an  administra- 
tor-in-chief.  Where  this  has  been  done  we  have  in  effect 
the  same  person  holding  two  offices.  As  administrator-in- 
chief  the  person  holding  the  office  of  chief  executive  plays 
a  dominant  role  in  the  work  of  the  administrative  branch. 
In  doing  so,  however,  he  does  not  do  so  in  virtue  of  any 
inherent  powers  as  chief  executive,  but  merely  because  the 
legislative  branch,  in  which  final  authority  in  respect  to  the 
organization  and  work  of  the  administrative  branch  is 
vested,  has,  as  a  matter  of  policy,  made  of  this  officer  one 
to  serve  in  this  capacity. 

When  we  turn  to  a  consideration  of  the  relations  that 
exist,  or  may  exist  between  the  chief  executive  and  the 
other  two  branches  of  government,  the  electorate  and  the 
legislature,  we  are  confronted  with  issues  of  great  impor- 
tance. These  issues  center  around  the  question  as  to 
whether  the  responsibility  of  the  chief  executive  for  the 
manner  in  which  he  discharges  the  duties  of  the  office  shall 
be  directly  to  the  electorate  or  to  the  electorate  through  the 
legislature.  According  as  one  or  the  other  of  these  two 
principles  are  adopted,  different  types  of  government  are 
brought  into  existence  to  which  have  been  given  the  desig- 


352      THE  GOVERNMENT  OF  MODERN  STATES 

nations  of  "  Presidential  Government,"  and  "  Responsible 
Government." 

The  Presidential  Type  of  Government. —  That  type  of 
Popular  Government  known  as  a  Presidential  Government 
results  where  the  chief  executive  is  deemed  to  derive  his 
powers  directly  from,  and  be  accountable  directly  to,  the 
electorate.  The  leading  example  of  such  a  government 
is  that  of  the  United  States.  Under  this  form  of  govern- 
ment the  chief  executive  is  not  dependent  upon  having  the 
support  of  the  legislative  branch  for  continuance  in  office. 
It  may  happen,  and  in  our  government  often  does  happen, 
that  the  chief  executive  and  the  legislature  are  not  in  ac- 
cord in  respect  to  their  general  policies  or  governmental 
programs,  and  that  the  chief  executive  may  hold  his  office 
in  virtue  of  the  support  of  a  political  party  different  from 
the  one  to  which  the  majority  of  the  members  of  the  legis- 
lature belongs. 

The  Responsible  Type  of  Government. —  What  is 
known  as  a  Responsible  Government  exists  when,  in  a  Pop- 
ular Government  of  the  Representative  Type,  the  principle 
is  established  that  the  officer  or  officers  actually  exercising 
the  executive  power  shall  at  all  times  have  the  support 
of  at  least  the  lower  or  popular  chamber  of  the  legislature, 
as  a  condition  to  their  remaining  in  power.  A  condition 
precedent  to  the  operation  of  a  government  of  this  type 
would  seem  to  be  the  establishment  of  the  system,  heretofore 
described,  of  having  the  executive  power,  from  the  legal 
standpoint,  vested  in  the  hands  of  a  titular  chief  executive, 
while  its  actual  exercise  is  in  the  hands  of  another  body 
known  as  a  ministry.  Leading  examples  of  this  form  of 
government  are  the  governments  of  England,  France,  Italy 
and  many  other  countries  of  Europe.  In  these  governments 
the  ministry  usually  is  composed  of  the  heads  of  the  more 


THE  EXECUTIVE  BRANCH  353 

important  administrative  departments  and  are  at  the  same 
time  members  of  one  or  the  other  of  the.  two  houses  of  the 
legislature,  or  at  least  have  power  to  be  present  and  to 
participate  in  the  proceedings  of  those  bodies.  In  them, 
in  fact,  we  have  a  union  of  legislative,  executive  and  ad- 
ministrative powers  in  the  same  hands.  It  is  thus  common 
to  speak  of  the  ministry  in  power  as  the  "  Government." 

This  "  Government,"  as  has  been  stated,  can  only  remain 
in  power  so  long  as  it  has  the  support  of  the  popular  branch 
of  the  legislature;  that  is,  all  of  its  measures  of  importance 
must,  upon  a  test  vote,  receive  a  majority  of  the  votes  cast. 
Defeat  on  any  such  vote  is  deemed  to  be  a  vote  of  lack  of 
confidence  and  the  ministry  thereupon  must  place  its  resig- 
nation in  the  hands  of  the  titular  or  legal  chief  executive. 
It  then  becomes  the  duty  of  that  officer  to  select  some  other 
person  who  will  undertake  to  form  a  new  ministry  that  will 
receive  the  support  of  the  popular  chamber.  In  making 
this  selection  of  a  "  Premier  "  the  titular  chief  executive 
may,  or  may  not,  according  to  circumstances,  have  some 
discretion  in  respect  to  whom  he  shall  choose.  If  what  is 
known  as  the  Two  Party  System  of  political  parties  ob- 
tains, his  choice  is  practically  limited  to  the  leader  of  the 
opposition  party  in  the  House.  When  the  Multi-Party 
System  obtains,  and  when  consequently  a  majority  may  be 
secured  through  various  combinations  of  parties,  no  one 
of  which  has  a  majority,  the  titular  chief  executive  may 
have  some  considerable  degree  of  discretion  in  making  his 
selection.  Under  these  conditions  it  often  happens  that 
several  men  in  turn  are  entrusted  with  the  task  of  forming 
a  ministry  before  success  is  achieved  in  finding  one  who  can 
form  a  ministry  that  will  receive  the  support  of  the  House. 

To  the  statement  that  a  ministry,  to  remain  in  power, 
must  at  all  times  have  the  support  of  the  popular  chamber, 


354      THE  GOVERNMENT  OF  MODERN  STATES 

one  important  exception  must  be  made.  In  England,  whose 
government  is  the  leading  example  of  this  type  of  govern- 
ment, a  ministry,  upon  being  defeated  in  the  House,  can, 
if  it  believes  that  the  adverse  vote  does  not  correctly  inter- 
pret the  will  of  the  electorate,  appeal  to  the  latter.  This  it 
does  by  recommending  to  the  titular  executive,  the  King, 
that  he  dissolve  the  House  and  order  the  election  of  a  new 
one.  This  recommendation,  under  the  English  political 
system,  is  one  that  the  King  cannot  refuse  to  comply  with. 
This  feature  must  be  considered  in  connection  with  another 
fundamental  principle  of  the  English  system.  This  is  that 
members  of  the  House  of  Commons  are  elected  under  what 
amounts  to  an  imperative  mandate  from  their  constituencies 
to  support  in  all  cases  one  or  the  other  of  the  political  par- 
ties. It  results  from  this  that  a  ministry  taking  office  with 
a  majority  of  the  House  at  its  back  is  rarely  defeated  in 
the  House.  Few  changes  in  a  ministry  thus  take  place 
except  as  the  outcome  of  a  general  election.  It  will  thus 
be  seen  that  on  final  analysis  it  is  the  electorate  that  deter- 
mines the  ministry  that  shall  hold  power. 

It  should  furthermore  be  noted  that  it  devolves  upon  the 
ministry  in  power  and  the  opposition,  or  the  ministry  out 
of  power,  as  the  opposition  under  the  Two  Party  System 
is"  sometimes  termed,  to  formulate  their  political  programs. 
Actually,  therefore,  the  House  of  Commons  is  not  the  body 
which  formulates  governmental  programs,  or  even  holds  the 
ministry  in  power  to  account.  The  responsibility  of  the 
ministry  to  it  is  thus  more  formal  than  actual.  The  Eng- 
lish system  is  none  the  less  one  of  Responsible  Government. 
It  is,  indeed,  the  highest  type  of  that  form  of  government, 
since,  in  its  practical  operation,  responsibility  is  to  that  body 
to  which  it  should  be,  if  the  principle  of  Popular  Govern- 
ment is  to  find  full  expression. 


THE  EXECUTIVE  BRANCH  355 

France,  no  less  than  England,  has  a  Responsible  Govern- 
ment. This  government,  however,  works  in  a  different 
way  from  what  it  does  in  England,  due  to  the  fact  that  it 
has  not  developed  the  features  which  we  have  just  been 
describing  as  parts  of  the  English  system.  In  the  first  place 
the  French  constitution  provides  that  the  lower  house,  or 
Chamber  of  Deputies,  as  it  is  called,  cannot  be  dissolved 
by  the  chief  executive  except  upon  the  consent  of  the  upper 
house,  the  Senate,  being  secured.  In  practice  this  has  meant 
that  the  power  of  dissolving  the  lower  house  is  rarely,  if 
ever,  exercised.  Effective  means  are  thus  lacking  by  which 
a  defeated  ministry  can,  if  it  desires,  appeal  from  the  deci- 
sions of  the  House  to  the  electorate.  In  the  second  place, 
France  has  not  evolved  a  Two  Party  System  of  political 
parties.  Most  ministries  come  into  power  through  the  ef- 
fecting of  a  coalition  between  a  number  of  parties,  no  one 
of  which  has  a  majority,  and  are  frequently  defeated  in  the 
lower  house  by  a  regrouping  of  parties  or  factions  within 
such  parties.  Changes  of  ministry  thus  are  of  frequent 
occurrence  as  the  result  of  voting  within  the  House  and 
without  any  new  expression  of  opinion  by  the  electorate. 
The  responsible  government  of  France  is  thus  one  of  real 
responsibility  to  the  legislature,  and  only  very  indirectly  to 
the  electorate. 

Before  leaving  this  subject  of  the  responsible  type  of  gov- 
ernment, two  matters  of  general  interest  should  receive  at- 
tention. The  first  is  that  all  governments  having  a  Presi- 
dent as  their  chief  executive  are  not  Presidential  Govern- 
ments, as  that  term  is  technically  employed;  or,  to  state 
this  in  another  way,  it  is  as  possible  to  have  a  Resgonsible 
Government  in  a  Republic  as  it  is  in  a  Monarchy.  The  sec- 
ond is  that  most  peoples  who  are  now  trying  to  pass  from 
an  Autocracy  to  a  Popular  Government  are  seeking  to  do 


356      THE  GOVERNMENT  OF  MODERN  STATES 

so  by  establishing  the  principle  of  Parliamentary  Responsi- 
bility. This  is  especially  evident  in  the  case  of  the  two 
leading  Autocracies  of  the  world,  Germany  and  Japan.  In 
the  former  country  the  formal  declaration  has  been  made 
by  the  Chancellor  that  the  principle  of  parliamentary  re- 
sponsibility on  the  part  of  the  Chancellor  and  other  minis- 
ters of  the  Crown  will  hereafter  be  observed,  and  that  steps 
will  be  taken  so  to  amend  the  imperial  constitution  as  to 
make  this  possible.1  In  Japan  "the  struggle  for  a  recogni- 
tion of  this  principle  has  long  been  a  dominant  feature  of 
her  politics  and  the  new  ministry  just  created  is  said  to 
be  the  first  one  to  be  formed  resting  squarely  upon  that 
principle. 

Comparison  of  the  Two  Systems. —  That  much  atten- 
tion should  have  been  given  to  the  relative  merits  of  these 
two  widely  divergent  systems  of  government  is  evident. 
Each  has  its  ardent  partisans.  It  is  exceedingly  difficult, 
however,  to  weigh  the  merits  of  the  respective  claims  that 
are  put  forward.  This  arises  from  a  number  of  facts.  The 
first  is  that  this  feature  of  government  cannot  be  dissociated 
from  other  features  of  government  and  considered  alone. 
Especially  must  attention  be  given  to  the  important  ques- 
tion of  the  separation  or  union  of  powers. 

One  of  the  great  advantages  claimed  for  the  system  of 
Responsible-  Government  is  that  it  ensures  that  the  three 
great  branches  of  government,  the  legislative,  the  execu- 
tive and  the  administrative,  will  at  all  times  be  in  accord. 
No  one  can  deny  the  validity  of  this  claim.  One  has  but 
to  contrast  the  conditions  obtaining  under  the  English  sys- 
tem of  Responsible  Government  with  those  obtaining  under 
our  own  system  of  Presidential  Government.  Under  the 

1  Address  of  the  Chancellor,  Prince  Maximilian,  before  the  Reichstag, 
October  5,  1918. 


THE  EXECUTIVE  BRANCH  357 

English  system,  it  is  impossible  for  the  three  branches  to 
be  in  disaccord.  With  us  it  is  almost  a  matter  of  chance 
if  the  executive  and  the  legislature  are  of  the  same  political 
complexion;  and  cases  are  constantly  arising  where  a  Pres- 
ident is  not  even  in  accord  with  the  members  of  his  own 
political  party  in  Congress.  The  result  is  that  neither  the 
President  nor  Congress  is  able  to  carry  out  his  or  its  pol- 
icies unless  the  latter  body  should  be  so  united  that  it  can 
muster  the  two-thirds  vote  necessary  to  override  a  Presi- 
dential veto  of  bills.  This  condition,  however,  is  not  wholly, 
and  possibly  not  primarily,  the  consequence  of  the  United 
States  adopting  the  presidential  type  of  government.  In 
no  small  degree  it  is  due  to  the  fact  that  different  terms  of 
office  have  been  given  to  Senators,  members  of  the  House 
and  the  President;  Senators  being  elected  for  six  years, 
the  President  for  four  years,  and  members  of  the  House 
for  two  years.  Were  the  provision  made  that  all  should 
have  a  uniform  term,  and  be  elected  at  the  same  time,  it 
would  be  quite  possible  to  have  a  government  in  which  both 
branches  would  be  of  the  same  political  complexion  and 
pledged  to  the  same  general  program. 

Another  advantage  claimed  for  Responsible  Government 
is  that  such  government  at  all  times  corresponds  to  the  de- 
sires of  the  electorate  as  expressed  directly  or  through  its 
representatives  in  the  legislature;  since  at  any  moment  the 
ministry  may  be  defeated  and  one  conforming  more  to  pop- 
ular desires  be  substituted  in  its  place.  This  is  an  advan- 
tage, however,  which  is  more  theoretical  than  actual.  In 
England,  as  we  have  seen,  a  ministry  is  now  almost  never 
overturned  except  as  the  result  of  an  election.  The  length 
of  Parliament's  term  is  now  fixed  at  five  years;  until  re- 
cently it  was  seven  years.  A  ministry  having  a  substan- 
tial majority  upon  assuming  office  as  the  result  of  a  general 


358      THE  GOVERNMENT  OF  MODERN  STATES 

election  thus  has  an  almost  assured  life  of  a  period  greater 
than  that  enjoyed  by  the  President  and  much  greater  than 
that  enjoyed  by  the  popular  chamber  of  our  legislature. 
The  facility  with  which  changes  of  ministries  may  be  made 
in  countries  having  a  Responsible  Government,  and  not 
having  the  party  system  and  political  conventions  of  Eng- 
land, such  as  France,  is  moreover  not  an  unmixed  blessing. 
Certainly  in  those  countries  it  has  given  an  instability  to 
the  administration  of  public  affairs  that  is  not  found  in 
this  country. 

Much  the  most  important  fact  to  be  given  consideration 
in  seeking  to  make  a  choice  between  these  two  systems  is 
that  of  the  actual  conditions  to  be  met  and  especially  the 
political  experiences  and  capacity  of  the  people  concerned. 
There  can  be  little  question  that  of  the  two  systems  the  suc- 
cessful working  of  the  system  of  Responsible  Government 
necessitates  a  far  higher  political  capacity  on  the  part  of 
the  people  than  is  required  in  the  case  of  a  Presidential 
Government.  Responsible  Government  has  worked  well 
only  in  the  case  of  England,  whose  people  have  had  cen- 
turies of  experience  in  the  working  of  popular  institutions. 
It  has  worked  indifferently  in  France,  and  in  most  other 
countries  has  given  very  unsatisfactory  results.  As  has 
elsewhere  been  stated,  it  was  the  good  fortune  of  the  author 
to  serve  for  a  term  as  constitutional  adviser  to  China  while 
that  country  was  attempting  to  establish  a  new  form  of  gov- 
ernment. One  of  the  great  issues  then  at  stake  was  as  to 
whether  the  Republic  that  it  was  being  sought  to  establish 
should  be  of  the  presidential  or  responsible  type.  The  au- 
thor had  no  hesitancy  in  giving  his  advice  in  favor  of  the 
presidential  type.  China  had  no  effective  means  of  formu- 
lating a  public  opinion,  no  well  developed  party  system. 
The  brief  experiment  that  had  been  made  with  Responsible 


THE  EXECUTIVE  BRANCH  359 

Government  showed  that  intelligent  control  by  the  legisla- 
ture of  ministries  could  not  be  had.  Ministries  consisted 
only  of  coalitions  of  persons  seeking  to  maintain  themselves 
in  power  by  the  distribution  of  governmental  favors  among 
members  of  the  legislature  and  the  exertion  of  improper  in- 
fluence in  other  ways.  Nothing  approaching  a  really  stable 
government  with  a  carefully  formulated  and  consistently 
adhered  to  program  was  possible  under  these  conditions. 
It  is  practically  certain  also  that  Responsible  Government 
would  prove  a  failure  if  attempted  in  many  of  the  Latin 
American  Republics. 

In  conclusion  it  may  be  said  that  Responsible  Government 
in  England  has  undoubtedly  worked  well;  and  it  has  many 
features  that  should  be  carefully  studied  by  us  in  seeking 
to  improve  our  own  government.  It  is  not,  however,  one 
that  is  applicable  to  all  peoples.  It  is  indeed  a  question 
whether  it  will  give  successful  results  except  where  excep- 
tionally favorable  conditions  are  to  be  found  such  as  exist 
in  England  and  her  great  English  speaking  Dominions. 


CHAPTER  XV 

THE   JUDICIAL   BRANCH 

Of  the  several  branches  of  government  none  has  received 
so  little  attention  at  the  hands  of  students  of  political  science 
as  the  judicial  branch;  yet  none  is  of  greater  political 
importance  to  the  individual  or  more  in  need  of  critical 
examination.  To  us  in  the  United  States  this  is  especially 
so  since  both  our  system  of  courts  and  their  methods  of 
procedure  are  far  from  satisfactory.  In  their  practical 
operation  they  are  expensive  both  to  the  government  and  to 
litigants;  they  perform  their  work  with  great  dilatoriness ; 
and  miscarriages  of  justice  are  frequent. 

The  Functions  of  the  Judicial  Branch. —  To  under- 
stand the  part  played  by  the  judicial  branch  in  the  political 
system  of  a  country,  and  the  problems  that  are  presented  in 
providing  for  its  organization  and  administration,  it  is  de- 
sirable to  start  with  a  somewhat  more  accurate  idea  of 
the  functions  performed  by  courts  than  generally  obtains. 
In  popular  estimation  courts  do  little  more  than  one  thing : 
decide  disputes.  '  This,  however,  is  a  very  superficial  view. 
If  one  looks  below  the  surface  it  will  be  found  that,  in  de- 
ciding disputes,  courts  do  a  number  of  important  things 
other  than  that  of  the  settlement  of  particular  controversies. 
Analysis  of  the  work  done  by  them  shows  that  they  in  fact 
do  the  following  five  things : 

1.  Investigate  and  determine  facts. 

2.  Apply  the  law  to  the  facts  as  thus  determined. 

3.  Determine  and  construe  law. 

360 


THE  JUDICIAL  BRANCH  361 

4.  Prevent  the  infraction  of  law  and  the  violation  of 

rights. 

5.  Administer  property. 

Courts  as  Bodies  to  Investigate  and  Determine  Facts. 
—  It  is  very  important  to  distinguish  between  the  work 
done  by  courts  in  investigating  and  determining  facts,  and 
that  done  in  interpreting  and  applying  the  law  to  these  facts. 
In  the  great  majority  of  cases  coming  before  courts,  whether 
of  a  civil  or  criminal  character,  the  law  involved  is  clear 
and  no  legal  issue  is  presented.  The  task  confronting  the 
court  in  such  cases  is  thus  simply  that  of  determining  facts. 
The  desirability  of  distinguishing  the  fact-determining 
function  of  courts  from  their  other  functions  lies  in  the 
fact  that  courts  in  most  countries,  and  especially  in  England 
and  the  United  States,  have  developed  a  very  special  pro- 
cedure in  its  performance.  This  procedure  consists  in  treat- 
ing the  inquiry  practically  as  a  duel,  in  having  the  two 
parties  bring  forward  witnesses  to  testify  in  support  of  their 
respective  contentions  and  in  having  the  court  itself  reach 
a  decision  through  a  weighing  of  the  testimony  thus  pro- 
duced. The  system,  in  a  word,  is  one  where  the  burden  of 
bringing  out  the  facts  is  thrown  almost  wholly  upon  the 
parties  to  the  contest.  The  whole  inquiry  is  given  an  in- 
tensely partisan  character.  Even  the  witnesses,  whether 
they  have  any  interest  in  the  case  or  not,  are  supposed  to  be 
witnesses  for  one  side  or  the  other.  The  court  itself  as- 
sumes little  or  no  responsibility  in  respect  to  seeing  that  all 
available  evidence  is  produced.  It  makes  no  investigation 
itself,  summons  no  witnesses.  Furthermore,  in  carrying 
out  this  system  of  fact  determination,  it  has  formulated  an 
elaborate  set  of  rules  to  govern  the  parties  in  producing  wit- 
nesses and  subjecting  them  to  interrogation.  The  court 
'  itself  thus  occupies  practically  a  neutral  position,  confining 


362      THE  GOVERNMENT  OF  MODERN  STATES 

its  action  almost  wholly  to  seeing  that  the  rules  of  the  game 
are  followed  by  the  contestants. 

This  system  is  in  marked  contrast  to  that  pursued  by  an 
administrative  body  in  seeking  to  determine  the  facts  upon 
which  to  base  its  action.  Such  a  body  itself  determines 
the  character  of  the  facts  deemed  necessary  in  order  to 
arrive  at  a  proper  decision.  It  provides  itself  with  a  staff 
of  investigators  which,  acting  under  its  constant  direction 
and  supervision,  -secure  the  data  needed.  It  does  not  tie  its 
own  hands  by  formulating  rules  of  procedure  to  which  it 
is  bound  to  make  its  action  conform  in  all  cases.  It  thus 
takes  direct  charge  of  an  inquiry  and  assumes  full  responsi- 
bility for  its  prosecution. 

We  have  contrasted  these  two  methods  of  inquiry,  the 
judicial  and  the  administrative,  since  there  is  evidently  here 
presented  a  difference  of  method  of  the  utmost  significance. 
The  making  of  a  choice  between  them  constitutes  one  of 
the  problems  that  is  presented  in  determining  the  organiza- 
tion and  methods  of  procedure  of  the  judicial  branch  of  a 
government.  Only  by  segregating  this  fact-determining 
function  from  the  other  functions  performed  by  a  court  can 
the  special  character  of  this  problem  be  made  clear. 

In  the  case  of  our  own  judicial  system  this  problem  is 
all  the  more  important  since  this  function  of  determining 
facts  has,  in  the  case  of  certain  classes  of  controversies,  not 
only  been  carefully  segregated,  but  use  is  made  of  a  spe- 
cial organ  for  reaching  a  decision  in  respect  to  such  facts. 
This  special  organ  is  the  Petty  Jury.  This  jury  consists  of 
twelve  men  who  are  specially  empaneled  for  each  case  to 
sit  as  a  board  for  the  hearing  of  the  testimony  and,  on  the 
basis  of  such  testimony,  of  finding  the  facts.  Here  again 
a  very  grave  question  is  presented  as  to  whether  the  use  of 
such  an  organ  can  be  justified  by  the  results  that  are  ob- 


THE  JUDICIAL  BRANCH  363 

tained  under  it.  The  issues  that  are  here  involved  go  to  the 
very  foundation  of  our  system  of  judicial  administration. 
They  have  received  and  are  receiving  great  attention  and 
the  literature  regarding  them  is  voluminous.  Into  the  rela-' 
tive  merits  and  demerits  of  the  system  in  force  we  cannot 
here  enter.  All  that  we  can  do  is  to  state  the  issue  as  one 
of  the  important  problems  of  judicial  administration. 

Courts  as  Bodies  to  Apply  the  Law  to  Ascertained 
Facts. —  With  the  facts  determined,  the  next  step  in  the 
work  of  courts  is  to  determine  the  action  that  shall  be  taken 
upon  such  facts.  This  is  performed  by  courts  in  rendering 
what  is  known  as  decisions.  In  them  the  courts  decide  what 
is  the  application  of  existing  law  to  such  facts.  In  doing 
so  they  may  exercise  a  certain  discretion,  though  the  limits 
within  which  such  discretion  may  be  exercised  are  usually 
carefully  defined  by  the  law.  Here  again  it  is  important  to 
distinguish  between  the  principles  governing  a  court  in 
the  performance  of  this  function  and  those  governing  a 
non- judicial  body.  It  has  been  accurately  stated  that  the 
function  of  a  court  is  to  administer  law,  not  justice.  The 
court  is  not  a  free  agent.  It  cannot  form  its  decision  in 
accordance  with  what  it  may  believe  will  most  nearly  con- 
form to  absolute  equity  or  justice  in  the  particular  case  un- 
der consideration.  It  is  bound  absolutely  by  the  law.  All 
that  it  can  do  is  to  declare  what  the  law  provides  shall  be 
done  where  a  given  set  of  facts  is  determined  to  exist.  Ad- 
ministrative bodies  are  not  bound  in  anything  like  the  same 
way.  They  are  much  freer  to  make  their  decisions  of  a 
character  more  nearly  conforming  to  justice  or  expediency. 
It  is  not  intended  by  any  means  to  convey  the  impression 
that  the  latter  method  is  the  one  that  is  superior  to  the 
former  in  the  settlement  of  the  classes  of  controversies 
coming  before  courts.  It  is  merely  desired  to  point  out 


364      THE  GOVERNMENT  OF  MODERN  STATES 

that. here  is  a  choice  of  principles  which  constitutes  one  of 
the  distinct  problems  of  judicial  administration. 

Courts  as  Bodies  to  Determine  or  Construe  Law. — 
In  considering  the  function  of  courts  as  bodies  to  apply 
the  law  to  particular  cases  we  have  assumed  that  no  issue 
is  presented  as  to  what  the  law  is  and  its  applicability  to  the 
case  at  bar.  Unfortunately  there  are  many  instances  where 
this  condition  does  not  obtain.  Laws  necessarily  must  be 
general  in  character.  In  many  cases  they  are  so  worded 
that  it  is  difficult  to  determine  their  exact  meaning.  With 
constantly  changing  conditions,  issues  are  presented  which 
were  not  considered  when  the  laws  were  framed.  Laws 
are  not  always  consistent  with  each  other,  and  doubt  often 
exists  in  respect  to  which  of  two  provisions,  or  which  of 
two  laws,  should  govern  in  a  particular  case.  It  results 
from  this  that  courts  have  the  very  important  function  of 
determining  what  the  law  is,  what  its  scope  and  meaning, 
and,  when  there  is  an  apparent  conflict  between  provisions 
and  laws,  which  shall  prevail. 

This  is  a  function  of  supreme  importance  in  any  country, 
but  particularly  so  in  England,  the  United  States  and  all 
countries  which  have  inherited  from  the  former  country  her 
system  of  jurisprudence  known  as  the  "  common  law.'* 
In  these  countries  the  law  regulating  the  relations  between 
individuals  has  been  reduced  to  formal  statutory  form  to 
but  a  comparatively  slight  extent.  For  the  most  part  this 
law  has  come  into  existence  as  the  result  of  a  long  line  of 
decisions  of  courts  in  passing  upon  specific  cases.  Under 
the  doctrine  of  what  is  known  as  stare  decisis,  a  final  deci- 
sion made  by  a  court  is  deemed  to  be  of  controlling  force 
in  all  similar  or  analogous  cases  thereafter  arising.  Espe- 
cially is  this  so  when  the  same  decision  has  been  repeatedly 
made  or  affirmed  by  a  long  line  of  decisions.  It  results 


THE  JUDICIAL  BRANCH  365 

therefore  that  a  great  part  of  what  is  known  as  private 
law  is  to  be  found  authoritatively  expressed  only  in  the  de- 
cisions of  courts,  as  embodied  in  the  thousands  of  reports 
in  which  these  decisions  are  published.  Under  these  cir- 
cumstances the  function  of  courts  in  determining  what  the 
law  is  is  a  correspondingly  important  and  difficult  one. 
Growing  out  of  this  situation  of  affairs  there  has  long  been 
an  acute  controversy  among  students  of  jurisprudence  as 
to  whether  courts  are  agencies  for  making  law  or  merely 
declaring  law.  The  issue  is  one  which  lends  itself  to  many 
subtile  distinctions  into  which  we  cannot  here  enter.  It  is 
sufficient  to  say  that  they  do  determine  the  law  that  exists 
at  any  given  time. 

This  function  of  determining  the  law  in  its  practical 
application  is,  however,  one  that  must  also  be  performed 
by  courts  in  respect  to  that  law  which  is  in  statutory  form. 
Laws  in  this  form  are,  as  stated,  necessarily  very  general 
in  character.  Thus,  for  example,  a  law  having  for  its  pur- 
pose to  safeguard  individual  workers  from  accidents,  may, 
and  usually  does,  go  little  further  than  provide  that  all 
employers  in  dangerous  trades  and  industries  shall  take  due 
precautions  to  safeguard  all  dangerous  machinery  and  so 
to  conduct  their  enterprises  as  to  ensure  that  their  employees 
are  not  subjected  to  unnecessary  or  undue  risk  of  injury. 
It  is  a  physical  impossibility  to  specify  in  detail  in  the 
law  which  industries  shall  be  deemed  to  be  dangerous,  what 
machinery  shall  be  safeguarded  and  what  regulations  gov- 
erning the  work  shall  be  enforced.  The  best  that  can  be 
done  is  to  insert  such  general  definitions  and  provisions  as 
will  make  clear  the  intent  of  the  law.  It  thus  devolves 
upon  the  courts  to  determine  in  each  case  whether  the  in- 
dustry involved  is,  or  is  not,  a  dangerous  industry  within 
the  intent  of  the  law,  whether  the  piece  of  machinery  caus- 


366      THE  GOVERNMENT  OF  MODERN  STATES 

ing  the  accident  was  one  that  should  have  been  safeguarded, 
and  whether  the  regulations  in  force  were  adequate.  The 
courts  thus  amplify  law  and  determine  its  scope  and  appli- 
cability to  specific  cases.  In  doing  so  they  act  in  a  quasi- 
legislative  capacity,  doing  that  which  legislatures  should 
do  if  they  were  able. 

Another  important  way  in  which  courts  determine  law  is 
in  resolving  conflicts  of  laws.  All  laws  are  not  of  equal 
status  or  controlling  force.  Most  laws  emanate  from  bod- 
ies exercising  only  a  delegated  authority.  It  thus  becomes 
necessary  in  many  cases  to  determine  whether  the  body 
exercising  delegated  authority  has  acted  within  the  scope 
of  its  authority  in  enacting  a  certain  law.  The  highest  law 
in  the  United  States  is  that  contained  in  the  constitutions  of 
the  United  States  and  the  several  constituent  states.  Next 
in  rank  is  that  contained  in  the  statutes  enacted  by  Congress 
and  the  legislatures  of  the  several  states.  Then  follow  the 
laws  or  ordinances  of  political  subdivisions,  such  as  munici- 
palities, counties,  etc.  In  the  case  of  all  of  these  subordi- 
nate bodies,  the  scope  of  their  legislative  powers  is  deter- 
mined by  the  constitution  or  by  the  organic  acts  authorizing 
their  establishment  and  operation.  Questions  are  conse- 
quently constantly  arising  as  to  whether  laws  enacted  by 
such  bodies  are  within  the  scope  of  their  powers,  whether 
they  are  not  in  conflict  with  provisions  of  the  superior  law. 
Manifestly  the  power  to  determine  questions  such  as  these 
must  be  vested  somewhere.  In  the  United  States  the  exer- 
cise o-f  this  power  has  been  assumed  by  the  courts.  This 
assumption  of  power  has,  however,  been  bitterly  criticized 
by  many.  It  is  claimed  that,  by  so  doing,  courts  have 
placed  themselves  above  the  legislative  branch  and  have 
made  themselves  the  dominant  organ  in  determining  what 
legislation  shall  be  had.  It  is  pointed  out  that  the  author- 


THE  JUDICIAL  BRANCH  367 

ity  so  to  act  has  not  been  expressly  conferred  upon  them 
by  the  constitution  and  that  in  other  States  the  courts  have 
assumed  no  such  function.  The  issue  here  presented  is  an 
important  one.  Into  its  merits  we  cannot*  here  enter.  It 
is  necessary,  however,  to  recognize  that  in  the  United 
States  one  of  the  most  important  functions  performed  by 
courts  is  that  of  passing  upon  the  validity  of  laws,  or  to 
use  the  expression  commonly  employed,  their  constitution- 
ality. 

Courts  as  Bodies  to  Prevent  Infractions  of  Law  and 
Violation  of  Rights. —  Another  function  performed  by 
courts  is  that  of  serving  as  organs  to  prevent  infractions  of 
law  and  the  violation  of  rights.  Originally  courts  had  no 
such  function.  Gradually,  however,  courts,  in  England 
and  the  United  States  at  least,  took  the  position  that  it  was 
not  necessary  that  private  parties  should  wait  until  their 
rights  had  been  actually  violated  before  they  could  appeal 
to  the  courts  for  protection;  that  if  such  persons  had  rea- 
son to  believe  that  attempts  would  be  made  to  violate  their 
rights  they  could  appeal  to  the  courts  and  the  latter  would 
thereupon  issue  orders  prohibiting  such  attempts  or  at  least 
restraining  their  commission  until  the  rights  of  the  parties 
were  determined.  The  orders  so  issued  are  known  as  "  re- 
straining orders  "  or  "  injunctions."  Compliance  with  such 
orders  is  enforced  by  courts  through  the  power  which  they 
possess  of  ordering  the  arrest  or  fine  of  persons  who  are 
guilty  of  disobeying  orders  of  the  court.  This  power  is 
that  known  as  the  power  to  punish  for  contempt  of  court. 

This  power  of  issuing  restraining  orders  and  injunctions, 
of  deeming  persons  guilty  of  disobeying  them  as  guilty  of 
contempt  of  court,  and  of  imposing  penalties  for  such  c 
tempt,  is  one  which  has  been  greatly  criticized.     There  can 
be  no  question  that  in  years  past  it  has  been  exercised  by 


368      THE  GOVERNMENT  OF  MODERN  STATES 

courts  in  an  entirely  unjustifiable  manner  and  particularly 
so  in  controversies  arising  between  employers  and  their 
employees.  Courts  have  not  been  content  to  issue  orders 
directed  to  particularly  designated  parties,  but  have  issued 
what  are  known  as  "  blanket "  injunctions  directed  to  all 
parties,  that  is,  to  the  entire  population  of  the  country. 
This  comes  pretty  close  to  the  exercise  of  an  arbitrary  au- 
thority. Due  to  an  appreciation  of  this,  legislation  has  been 
enacted  restricting  the  powers  of  courts  to  issue  injunctions 
and  the  courts  themselves  have  come  to  exercise  such  pow- 
ers as  remain  to  them  in  a  more  conservative  manner. 

Courts  as  Bodies  to  Administer  Property. —  In  many 
cases  where  the  ownership,  use  or  rights  in  property  are  in 
dispute,  courts  will  take  over  the  administration  of  such 
property  pending  a  final  adjustment  of  the  points  at  issue. 
This  occurs  especially  in  the  settlement  of  the  estates  of  de- 
ceased persons  and  where  corporations  have  failed  to  live 
up  to  their  financial  obligations.  In  these  cases  the  court 
appoints  an  administrator  or  receiver  to  take  over  the  prop- 
erty and  administer  it  subject  to  its  orders.  Work  of  this 
kind  is  done  by  courts  on  a  vast  scale.  There  have  been 
times  when  a  very  considerable  portion  of  the  entire  rail- 
road mileage  of  the  country  was  in  the  hands  of  receivers 
thus  appointed  and  controlled  by  courts.  For  all  practical 
purposes  the  courts  have  in  these  cases  the  functions  and 
duties  of  boards  of  directors.  The  receivers  themselves  are 
but  officers  of  the  courts;  they  have  no  authority  other 
than  that  granted  to  them  by  the  courts  and  their  acts  must 
be  approved  by  that  body.  In  handling  such  property  the 
courts  seek,  if  possible,  to  adjust  all  outstanding  differences, 
to  settle  all  outstanding  claims,  and  as  soon  as  solvency  is 
established  to  return  the  property  to  its  owners.  Where 
this  is  not  possible  they  order  the  winding  up  of  the  affairs 


THE  JUDICIAL  BRANCH  369 

of  the  corporation,  the  sale  of  its  property,  and  the  distri- 
bution of  the  proceeds  to  the  persons  entitled  to  them. 

In  a  number  of  other  ways  courts  at  times  perform  work 
of  an  administrative  character.  They  have  thus  in  certain 
cases  had  entrusted  to  them  the  duty  of  granting  licenses, 
of  nationalizing  aliens,  of  performing  marriage  ceremonies, 
of  appointing  certain  officials.  All  of  these  duties  are 
known  as  the  "  non-contentious  "  functions  of  courts.  They 
do  not  constitute  an  essential  function  of  courts.  They 
represent  merely  cases  where  use  has  been  made  of  courts 
as  convenient  agencies  for  performing  these  classes  of  work. 

The  Organization  of  a  System  of  Courts. —  Having  ob- 
tained a  general  idea  of  the  nature  of  the  duties  falling 
upon  the  judicial  branch  we  are  in  a  position  to  consider 
the  problem  that  is  presented  in  providing  organs  through 
which  these  duties  may  be  performed.  These  organs  are 
known  as  courts,  or  more  broadly,  judicial  tribunals. 

One  of  the  firstjgoints ._^a£isjng_jn  devising  a  system  jj£ 
courts  is  whether  such  system  shall  be  an  integrated  or 
(differentiated  one;  that  is,  whether  a  single  system  ot  courts 
shalLb^§stablished  to  handle^aJLdass^s^ijraseSj  or  whether 
separate  courts  shall  be  established  corresponding  to  the 
main  classes  of  case^Jp_be_handled.  In~Prance,"Gefffiany, 
and  the  countries  of  Europe  generally,  a  clear  distinction 
has  been  drawn  between  disputes  between  individuals  and 
disputes  between  individuals  and  the  government  or  govern- 
ment officers;  and  a  separate- set  of  courts  has  been  estab- 
lished for  the  adjudication  of  each.  In  these  countries 
there  is  thus  found,  not  only  a  system  of  courts  correspond- 
ing to  the  ones  existing  in  England  and  the  United  States, 
but  another  set,  known  as  Administrative  Courts,  the  func- 
tion of  which  is  to  pass  upon  questions  involving  the  admin- 
istration of  public  law.  In  England  and  the  United  States 


370      THE  GOVERNMENT  OF  MODERN  STATES 

no  such  distinction  is  recognized.  The  same  set  of  courts 
administer  both  private  and  public  law.  Much  has  been 
written  regarding  the  relative  merits  of  these  two  systems 
and  especially  as  to  the  extent  to  which  adequate  protection 
of  individual  rights  as  against  government  officers  is  se- 
cured under  them.  For  a  long  time  it  was  strenuously  in- 
sisted by  English  and  American  writers  that  a 'far  more 
effective  guarantee  of  individual  rights  was  secured  under 
the  English  and  American  systems.  Study  of  the  practical 
operation  of  the  two  systems,  however,  reveals  that  this 
contention  can  hardly  be  maintained.  Administrative 
courts  in  Europe  are  found  to  act  with  as  great  independ- 
ence and  with  as  great  regard  to  the  protection  of  individual 
rights  as  do  English  and  American  courts.  Note  should 
further  be  had  of  the  fact  that,  notwithstanding  the  extent 
to  which  the  distinction  between  the  two  systems  is  insisted 
upon  in  the  United  States,  administrative  tribunals  of  a  ju- 
dicial or  quasi-judicial  character  are  constantly  being  cre- 
ated to  handle, matters  falling  in  the  administrative  field. 
Such,  for  example,  are  the  U.  S.  Court  of  Claims,  the  Court 
of  Customs  Appeals,  and  various  boards  and  commissions, 
such  as  the  Interstate  Commerce  Commission,  the  Federal 
Trade  Commission,  the  Shipping  Board,  the  Board  of  Pat- 
ent Appeals,  etc.1 

Except  for  this  distinction  between  ordinary  and  admin- 
istrative courts,  European  countries  have  integrated  sys- 
tems of  courts  to  a  far  greater  extent  than  England  and 
the  United  States,  though  the  former  country,  as  will  later 
be  shown,  has  now  gone  a  long  way  towards  the  establish- 
ment of  such  a  system.  In  England  until  a  recent  date 

1  For  a  consideration  and  comparison  of  the  two  systems,  see  Dicey: 
"  Law  and  Public  Opinion  in  England " ;  and  Goodnow,  "  Comparative 
Administrative  Law." 


THE  JUDICIAL  BRANCH  371 

and  in  the  United  States  at  the  present  time  a  large  num- 
ber of  distinct  courts  have  been  established  to  handle  differ- 
ent classes  of  cases.  There  are  civil  courts  and  criminal 
courts,  courts  of  equity  and  courts  of  common  law,  ad- 
miralty courts,  probate  courts,  domestic  relations  and  di- 
vorce courts.  This  multiplicity  of  courts  has  enormously 
complicated  the  work  of  judicial  administration.  Many 
cases  arise  where  it  is  difficult  to  determine  which  court 
has  jurisdiction.  These  courts  differ  in  respect  to  their 
methods  of  procedure,  and  the  character  of  the  remedies  that 
they  can  afford.  The  result  is  that  the  administration  of 
justice  has  become  such  a  technical  and  complicated  matter 
that  it  w&e  often  difficult  even  for  the  trained  lawyer  to 
find  his  way. 

To  correct  this  condition  of  affairs  England,  in  the  last 
half  of  the  nineteenth  century,  put  through  a  series  of  acts 
radically  reforming  her  entire  judicial  system.  The  most 
important  phase  of  this  reform  consisted  in  bringing  to- 
gether practically  all  of  her  courts  except  those  of  petty 
jurisdiction,  into  one  highly  integrated  system.  What  had 
formerly  been  independent  courts  became  but  branches  or 
subdivisions  of  a  single  Supreme  Court  of  Judicature. 

In  the  United  States  conditions  of  judicial  administra- 
tion are  complicated  by  the  existence  of  two  distinct  sets 
of  courts,  those  of  the  national  government,  known  as  fed- 
eral courts,  and  those  of  the  separate  states,  known  as 
state  courts.  The^ system  oljederaLsQUXts  as  .regards or- 
ganization, is  a  thoroughly  satisfactory  one.  The  state  sys- 
tprns^Jinwever,  are  defective  in  the  extreme.  With  few 
exceptions  they  present  all  of  the  evils  that  obtained  in  Eng- 
land prior  to  the  reform  acts  that  have  been  mentioned. 
There  are  few  measures  of  governmental  reform  more  ur- 
gently needed  than  that  of  the  recasting  of  these  systems. 


372      THE  GOVERNMENT  OF  MODERN  STATES 

The  direction  that  this  reform  should  take  has  been  pointed 
out  by  England.  It  should  consist  in  the  establishment  in 
each  state  of  a  single  integrated  system  of  courts  analogous 
to  that  established  in  England.  Fortunately,  the  need  for 
this  reform  is  now  being  appreciated.  The  National  and 
State  Bar  Associations  are  actively  urging  it  and  there  has 
been  established  a  society  known  as  the  American  Judicature 
Society,  which  has  the  accomplishment  of  this  reform  as 
one  of  its  main  interests. 

Another  phase  of  the  problem  of  organizing  a  system  of 
courts  is  that  of  classifying  courts  according  to  their  rela- 
tive rank.  As  a  matter  of  practical  expediency  it  is  found 
necessary  to  distinguish  between  what  are  known  as  petty 
courts,  that  is,  courts  having  jurisdiction  over  cases  involv- 
ing only  minor  infractions  of  law,  or  where  the  issue  at 
stake  is  of  minor  importance,  and  superior  courts  for  the 
trial  of  cases  of  serious  crime  or  involving  matters  of  great 
importance.  At  the  same  time  it  is  deemed  desirable  that 
provision  shall  be  made  whereby  decisions  in  trial  courts 
may  be  reviewed  by  superior  courts.  This  is  necessary, 
both  that  error  in  such  trial  courts  may  be  corrected,  and 
that  uniformity  in  the  administration  of  the  law  by  the  sev- 
eral courts  may  be  secured.  Much  difference  of  practice 
is  here  possible  in  respect  to  the  extent  to  which  this  right 
of  appealing  from  the  decision  of  a  lower  court  to  a  su- 
perior court  may  be  permitted.  Many  states  provide  for 
three  series  of  courts,  trial  courts,  intermediate  courts  of 
appeal,  and  a  supreme  court,  and  permit  great  freedom  in 
appealing  from  one  to  the  other.  While  the  power  to  carry 
a  case  up  from  one  court  to  another  results  in  the  correc- 
tion of  errors  in  particular  cases,  it  vastly  increases  the  ex- 
penses of  litigation  and  is  productive  of  a  corresponding 
delay  in  the  final  settlement  of  cases.  There  is  a  general 


THE  JUDICIAL  BRANCH  373 

consensus  of  opinion  on  the  part  of  students  of  our  judicial 
system  that  the  right  to  appeal  has  been  made  much  broader 
than  circumstances  justify;  that  the  effort  should  be  made 
to  provide  strong  and  competent  trial  courts  and  make  at 
least  their  determinations  of  facts  final,  appeal  being  per- 
mitted only  in  respect  to  matters  involving  the  construction 
or  interpretation  of  law;  rather  than  in  providing  for  weak 
trial  courts  and  then  making  liberal  provision  for  the  re- 
examination  of  their  decisions. 

Judicial  Procedure. —  Scarcely  less  in  importance  to  that 
of  the  system  of  courts  that  shall  be  provided  is  that  of  the 
procedure  that  shall  be  made  use  of  by  these  bodies  in  per- 
forming their  duties.  This  is  a  problem  involving  so  many 
technical  questions  that  we  can  do  little  more  than  point  out 
some  of  the  more  important  considerations  that  are  involved 
in  it. 

Some  of  these  considerations  have  already  been  mentioned 
in  our  consideration  of  the  functions  of  courts.  Among 
these  a  matter  of  prime  importance  is  that  of  the  role  that 
the  judges  should  play  in  the  trial  of  cases.  In  England 
and  on  the  continent  of  Europe  the  judge  assumes  a  positive 
direction  of  cases  in  a  way  that  he  does  not  in  the  United 
States.  There  is  here  presented  a  difference  of  procedure 
that  is  fundamental.  The  feeling  is  growing  in  this  coun- 
try that  the  English  system  is  the  superior  one  and  should 
be  adopted  in  this  country  as  rapidly  as  possible. 

Another  important  difference  of  procedure  in  judicial 
systems  of  different  countries  lies  in  the  method  employed 
in  putting  persons  accused  of  crime  upon  trial.  In  Eng- 
land and  the  United  States  the  system  is  that  known  as  the 
accusatorial.  In  all  cases  of  serious  crime  use  is  made  of 
what  is  known  as  a  Grand  Jury  to  conduct  an  inquiry  and 
determine  whether  a  person  accused  of  the  offense  shall  be 


374      THE  GOVERNMENT  OF  MODERN  STATES 

put  upon  trial.  This  jury  consists  of  a  number  of  private 
individuals,  usually  twenty-one,  who  are  selected  from  time 
to  time  to  sit  and  examine  into  accusations  of  crime.  If 
they  deem  that  a  prima  facie  case  exists  against  any  person 
they  "present"  or  "indict"  him.  The  term  "present" 
is  used  when  the  jury  acts  upon  its  own  initiative  and  "  in- 
dict "  when  it  acts  upon  a  case  brought  before  them  by  the 
prosecuting  attorney.  Persons  so  indicted  are  then  placed 
upon  trial  to  determine  their  innocence  or  guilt.  The  pro- 
ceedings of  the  grand  jury  are  secret  and  of  an  ex  parte 
character,  in  that  the  accused  need  be  given  no  opportunity 
to  be  heard  or  to  produce  witnesses  in  his  defense. 

In  France  and  other  countries  the  method  is  that  known 
as  "  inquisitorial,"  and  consists  in  having  an  investigation 
of  the  circumstances  of  each  case  made  by  a  special  officer 
who,  if  need  be,  proceeds  to  the  place  of  the  crime,  takes 
the  statements  of  persons  having  any  knowledge  bearing 
upon  the  crime,  and  in  other  ways  seeks  to  secure  all  avail- 
able evidence.  In  conducting  this  investigation  the  officer 
gives  an  opportunity  to  the  persons  accused  of  the  crime, 
or  under  suspicion,  to  prove  his  innocence.  If  he  finds  the 
evidence  against  any  person  strong  enough  to  warrant  his 
being  held,  he  orders  his  arrest.  When  the  trial  is  had  his 
report  is  transmitted  to  the  court  and  constitutes  one  of  the 
important  documents  in  the  case. 

Much  has  been  written  regarding  the  relative  merits  of 
these  two  systems.  It  is  claimed  by  advocates  of  the  latter 
system  that  it  is  superior  in  that  the  investigation  is  made 
at  once  by  a  trained  investigator  who  is  a  responsible  offi- 
cial, and  that  opportunity  is  afforded  the  accused  at  once 
to  establish  his  innocence  and  thus  avoid  the  odium  and 
expense  of  a  trial.  Under  the  grand  jury  system  weeks  and 
months  may  elapse  after  a  crime  is  committed  before  it 


THE  JUDICIAL  BRANCH  375 

is  investigated.  In  the  meantime  the  accused  may  be  con- 
fined in  jail  awaiting  its  action.  When  the  investigation  is 
had  it  is  conducted  by  persons  who  may  never  have  done 
such  work  before  and  may  not  be  competent  to  conduct 
such  an  inquiry. 

Much  the  most  marked  characteristic  of  the  English  and 
American  system,  in  contradistinction  to  those  obtaining 
generally  on  the  Continent  of  Europe,  lies  in  the  distinc- 
tion made  between  equity  and  law,  and,  in  the  use  of  the 
petty  jury  for  the  determination  of  matters  of  fact  in  cases 
coming  under  the  second  head.  In  England  the  administra- 
tion of  justice  was  originally  a  matter  that  concerned  the 
feudal  lord  or  the  local  government.  The  King  had  his 
courts  but  these  were  for  the  trial  only  of  cases  in  which  he 
was  concerned.  Gradually,  however,  by  a  process  of  evolu- 
tion into  which  we  cannot  here  enter,  the  King's  courts 
broadened  their  jurisdiction  and  in  time  took  over  prac- 
tically the  administration  of  justice  throughout  the  land, 
the  local  courts  being  either  eliminated  or  having  their  juris- 
diction restricted  to  very  petty  or  special  cases.  These 
Kings'  courts  developed  a  certain  number  of  forms  of  action 
to  which  persons  believing  themselves  wronged  in  any 
manner  had  to  resort.  If  a  man  desired  to  recover  posses- 
sion of  land  which  was  wrongfully  occupied  and  withheld 
from  him  he  brought  what  was  known  as  an  action  in  eject- 
ment. If  he  sought  to  recover  an  ordinary  debt  he  brought 
an  action  in  assumpsit,  etc.  These  actions  were  supposed 
to  cover  all  cases  of  private  wrongs,  each  wrong  having 
its  appropriate  action.  After  this  system  became  fixed  and 
rigid  so  that  no  new  actions  were  originated,  cases  began  to 
arise  where  these  actions  would  not  apply,  or  if  they  did, 
the  remedy  that  could  be  secured  through  them  did  not  meet 
the  necessities  of  the  case.  In  such  cases  aggrieved  parties 


376      THE  GOVERNMENT  OF  MODERN  STATES 

made  their  complaints  to  the  King,  who  turned  them  over 
to  his  Lord  Chancellor  for  action.  To  handle  these  cases 
there  thus  in  time  developed  a  distinct  set  of  courts  known 
as  Chancery  or  Equity  Courts.  These  courts  had  their  own 
special  methods  of  procedure  and  gave  remedies  of  a  char- 
acter not  to  be  obtained  in  ordinary  or  law  courts.  It  re- 
sulted from  this  that  England,  in  time,  found  itself  with 
two  bodies  of  law  known  as  "  common  law  "  and  "  equity," 
two  sets  of  courts,  and  two  systems  of  judicial  procedure 
and  remedies.  This  system  was  transplanted  to  America 
and  is  in  full  force  throughout  practically  all  of  the  states 
of  the  Union.  No  such  division  of  the  law  and  its  adminis- 
tration took  place  on  the  continent  of  Europe. 

It  has  been  stated  that  each  of  these  two  sets  of  courts 
developed  its  own  method  of  procedure  in  the  trial  of  cases 
coming  before  it.  These  two  systems  are  radically  different 
one  frorn  another.  Among  their  differences,  the  most  im- 
portant probably  is  that  in  courts  of  equity  the  judge  de- 
cides matters  both  of  law  and  fact,  while  in  courts  of  law, 
the  judge  decides  only  matters  of  law,  use  being  made  of 
a  body  known  as  a  petty  jury  to  decide  all  matters  of  fact. 
This  jury  consists  of  twelve  men  specially  summoned  and 
sworn  for  the  purpose.  Growing  out  of  the  fact  that  these 
men  are  untrained  in  the  law  and  are  not  accustomed  to 
weigh  evidence,  there  has  developed  an  elaborate  set  of  rules 
governing  the  character  of  evidence  or  testimony  of  wit- 
nesses that  may  be  given  to  the  jury  and  the  manner  in  which 
it  shall  be  presented.  These  rules  are  known  as  the  laws  of 
evidence  and  are  exceedingly  technical.  A  no  small  part 
of  the  work  of  judges  in  the  trial  of  cases  coming  before 
them  consists  in  ruling  on  what  evidence  shall  be  given  and 
the  manner  in  which  it  shall  be  given.  In  European  coun- 


THE  JUDICIAL  BRANCH  377 

tries  a  much  more  limited  use  is  made  of  juries,  and  where 
used  they  have  quite  a  different  character. 

As  in  the  case  of  the  grand  jury,  a  very  serious  question 
is  here  presented  as  to  whether  an  institution  such  as  the 
petty  jury  is  in  all  respects  satisfactory  under  modern  con- 
ditions; and  whether,  if  retained,  the  rules  governing  its 
operations  should  not  be  modified.  Especially  is  this  so 
in  respect  to  the  use  of  a  jury  in  the  trial  of  civil  actions. 
In  criminal  cases  the  belief  is  general  that  the  protection 
afforded  to  the  accused  by  the  requirement  that  his  guilt 
shall  be  established  by  the  unanimous  verdict  of  twelve  men 
is  a  very  valuable  safeguard  of  private  rights  and  liberties. 
In  civil  actions  where  the  contest  is  between  individuals  in 
respect  to  their  relative  rights  and  obligations,  the  use  of 
a  jury  gives  a  great  advantage  to  the  defendant,  since  the 
plaintiff,  in  order  to  prevail,  must  receive  the  unanimous  vote 
of  the  twelve  men  composing  the  jury,  while  the  defendant 
need  receive  only  one  vote  in  order  to  prevent  the  action 
going  against  him.  The  fact  that  the  large  class  of  cases 
falling  within  the  jurisdiction  of  the  equity  courts  are  tried 
without  a  jury  would  seem  to  demonstrate  that  the  use  of 
a  jury  is  not  essential  in  the  trial  of  any  civil  case. 

The  foregoing  represent  only  a  few  of  the  many  questions 
that  are  involved  in  the  problem  of  determining  the  pro- 
cedure to  be  followed  by  courts  in  performing  their  duties. 
They  must  be  taken  as  merely  suggestive  of  the  character 
of  this  problem.  Limitations  of  space  permit  only  the 
adding  of  one  or  two  further  observations  of  a  general 
character.  The  first  of  these  is  that  the  system  of  judicial 
procedure  that  obtains  under  the  American  government  is 
almost  wholly  a  matter  of  historical  inheritance.  There  is 
scarcely  a  feature  of  it  that  can  not  be  traced  back  to  its 


378      THE  GOVERNMENT  OF  MODERN  STATES 

origin  in  early  English  practice.  The  system  as  a  whole 
thus  developed  under  conditions  far  different  from  those 
now  obtaining.  It  is  intensely  formalistic,  technical  and 
complicated.  In  its  practical  workings  it  is  expensive,  re- 
sults in  great  delay,  and  too  often  is  productive  of  failure 
to  do  justice.  A  no  inconsiderable  number  of  cases  are 
decided  on  matters  of  technical  procedure  rather  than  on 
their  real  merits.  The  time  would,  therefore,  seem  to  be 
ripe  when  this  whole  system  should  be  subjected  to  critical 
study  with  a  view  to  making  it  conform  more  largely  to 
modern  conditions  and  to  putting  it  upon  a  more  economical 
and  efficient  basis. 

The  Problem  of  an  Independent  Judiciary. —  In  the 
foregoing  statement  of  the  problems  involved  in  the  organ- 
ization of  the  judicial  branch  of  a  government  we  have  re- 
frained from  making  more  than  incidental  mention  of  one 
factor,  notwithstanding  its  supreme  importance,  since  it 
is  of  so  special  a  character  and  so  vital  that  special  consid- 
eration should  be  given  to  it.  Reference  is  made  to  the  im- 
perative requirement  that  the  judiciary  shall  be  so  organ- 
ized that  it  will  have  complete  independence  in  performing 
its  duties.  But  this  is  meant,  not  merely  that  courts  in 
adjudicating  disputes  shall  be  free  from  all  social,  political 
or  other  private  influences,  but  that  they  shall  be  free  from 
all  dictation  or  control  on  the  part  of  the  other  branches 
or  officers  of  the  government.  Courts  have  the  function 
of  adjudicating,  not  merely  private  disputes,  but  those  aris- 
ing between  individuals  and  the  government,  and,  if  need 
be,  between  different  branches  of  the  government  itself. 

In  our  study  of  the  different  types  of  government  we  have 
seen  that  the  greatest  advance  ever  made  in  the  political  field 
consisted  in  the  establishment  of  the  principles  that  govern- 
ments should  be  ones  of  law,  instead  of  authority,  and  that 


THE  JUDICIAL  BRANCH  379 

there  are  certain  fields  of  individual  action  into  which  gov- 
ernments should  not  enter.  If  these  two  great  principles, 
are  to  be  maintained;  if  assurance  is  to  be  had  that  govern- 
ment officers  shall  not  act  arbitrarily  but  that  all  their  acts 
shall  be  in  strict  accordance  with  law,  and  that  all  individ- 
uals shall  be  protected  in  the  enjoyment  of  the  fundamental 
rights  and  liberties  guaranteed  by  the  constitution,  the  duty 
must  be  placed  somewhere  for  taking  the  action  that  will 
ensure  that  these  conditions  are  lived  up  to.  It  is  upon 
the  courts  of  the  land  that  this  duty  falls.  Manifestly  if 
they  are  to  perform  this  duty  they  must  be  so  constituted 
that  the}^  can,  not  only  act  fearless  of  consequences,  but 
exercise  the  power  required  in  order  to  secure  compliance 
with  their  determinations. 

It  might  seem  at  first  that  this  problem  of  securing  a  due 
compliance  with  law  by  officers  of  the  government  and  the 
guarantee  of  individual  rights  as  against  the  government 
would  arise  only  in  the  case  of  governments  of  an  auto- 
cratic character;  that  it  would  not  arise  in  the  case  of  a 
Popular  Government  where  the  final  control  of  political 
affairs  was  in  the  hands  of  the  people  themselves.  This, 
however,  is  not  so.  Popular  Government,  as  has  been 
pointed  out,  is  necessarily  government  by  a  majority.  The 
danger  is  thus  always  present  that  a  majority  of  the  peo- 
ple at  any  time  may  use  its  powers  in  an  arbitrary  manner 
to  oppress  the  minority.  When  one  considers  the  extent 
to  which  the  people  of  a  country,  even  with  a  comparatively 
homogeneous  population,  are  divided  into  classes,  separated 
by  race,  color,  .territorial  and  economic  interests,  religious 
beliefs,  and  other  factors,  it  can  be  seen  how  real  this  dan- 
ger is.  It  has  been  truly  said  that  no  tyranny  is  so  great 
as  that  of  a  majority.  One  of  the  great  problems  confront- 
ing a  people  in  establishing  a  Popular  Government  is  thus 


38o      THE  GOVERNMENT  OF  MODERN  STATES 

that  of  providing  means  by  which  this  danger  may  be 
avoided.  Experience  has  shown  that  this  can  be  done  in 
but  one  way;  that,  namely,  by  entrusting  to  the  courts  the 
duty  of  seeing  that  no  branch  of  government,  nor  all  the 
branches  combined,  shall  take,  any  action  contrary  to  law  or 
in  violation  of  the  rights  guaranteed  to  individuals. 

The  result  of  doing  this  is  to  give  to  the  judicial  branch 
of  government  a  status  quite  distinct  from  that  of  the  other 
branches.  In  the  first  place,  it  occupies  the  anomalous  po- 
sition of  being  at  once  a  branch  of  government  and  yet 
standing  outside  of,  or  at  least  independent  of,  the  govern- 
ment in  order  that  it  may  control  such  government.  Sec- 
ondly, courts  are  in  the  equally  anomalous  position  of  being 
agents  of  the  people  and  yet  not  representative  of  the  peo- 
ple in  the  same  way  as  the  other  branches,  since  their  duty 
is  not  that  of  carrying  out  the  will  of  the  people  as  repre- 
sented by  a  majority  of  such  people,  but,  on  the  contrary, 
of  protecting  the  minority,  no  matter  how  small,  whenever 
their  rights  are  threatened  or  interfered  with  by  such  ma- 
jority. As  stated  by  Mr.  Rome  G.  Brown  in  an  exceed- 
ingly able  paper,1  "  one  of  the  chief  functions  of  our  courts 
is  to  stand  between  the  legislature,  although  that  body  may 
for  the  time  represent  the  majority  of  the  people,  and  the 
individual  or  individuals  who  may  for  the  time  comprise 
the  minority,  and  to  prevent  an  infringement  by  the  ma- 
jority, through  the  legislature  representing  them  tempo- 
rarily, of  the  rights  guaranteed  to  the  individual  or  it  may 
be  an  entire  minority." 

No  one  has  described  this  peculiar  status  of  the  judiciary, 
and  expressed  its  special  function  of  protecting  the  mi- 
nority, better  than  former  President  William  H.  Taft.  In 

1  Address  on  Recall  of  Judges  before  the  Minnesota  State  Bar  Asso- 
ciation, July  19,  1911. 


THE  JUDICIAL  BRANCH  381 

his  message  to  Congress,  vetoing  the  resolution  providing 
for  the  admission  of  the  Territories  of  Arizona  and  New 
Mexico  as  States  in  1911,  due  to  their  constitutions  contain- 
ing clauses  which,  in  his  opinion,  failed  adequately  to  pro- 
tect the  independence  of  judges,  he  said : 

The  executive  and  legislative  branches  are  representative  of  the 
majority  of  the  people  who  elected  them  in  guiding  the  course  of 
the  government  within  the  limits  of  the  constitution.  They  must 
act  for  the  whole  people,  of  course;  but  they  may  properly  follow 
and  usually  ought  to  follow  the  views  of  the  majority  which  elected 
them  in  respect  to  the  governmental  policy  best  adapted  to  secure 
the  welfare  of  the  whole  people.  But  the  judicial  branch  of  the 
government  is  not  representative  of  a  majority  of  the  people  in  any 
such  sense,  even  if  the  mode  of  selecting  judges  is  by  popular  elec- 
tion. .  .  .  They  are  not  popular  representatives. 

Again  in  an  address  on  the  "Judiciary  and  Progress," 
delivered  at  Toledo,  Ohio,  on  March  8,  1912,  he  said: 

But  the  judiciary  are  not  representative  in  any  such  sense, 
whether  appointed  or  elected.  The  moment  they  assume  their 
luties  they  must  enforce  the  law  as  they  find  it.  They  must  not 
only  interpret  and  enforce  valid  enactments  of  the  legislature  ac- 
cording to  its  intention,  but  when  the  legislature  in  its  enactments 
has  transgressed  the  limitations  set  upon  its  power  in  the  constitu- 
tion the  judicial  branch  of  the  government  must  enforce  the  funda- 
mental and  higher  law  by  annulling  and  declaring  invalid  the  of- 
fending legislative  enactment.  Then  the  judges  are  to  decide  be- 
tween individuals  on  principles  of  right  and  justice.  The  great 
body  of  the  law  is  unwritten,  determined  by  precedent,  and  founded 
on  eternal  principles  of  right  and  morality.  This  the  courts  have 
to  declare  and  enforce.  As  between  the  individual  and  the  State, 
as  between  the  majority  and  the  minority,  as  between  the  powerful 
and  the  weak,  financially,  socially,  politically,  courts  must  hold  an 
even  hand  and  give  judgment  without  fear  or  favor.  In  so  doing 
they  are  performing  a  governmental  function,  but  it  is  a  complete 
misunderstanding  of  our  form  of  government  or  any  kind  of  gov- 


38a      THE  GOVERNMENT  OF  MODERN  STATES 

ernment  that  exalts  justice  and  righteousness  to  assume  that  judges 
are  bound  to  follow  the  will  of  the  majority  of  an  electorate  in  re- 
spect of  the  issue  for  their  decision.  In  many  cases  before  the 
judges  that  temporary  majority  is  a  real  party  to  the  controversy 
to  be  decided.  It  may  be  seeking  to  deprive  an  individual  or  a 
minority  of  a  right  secured  by  the  fundamental  law.  In  such  a 
case,  if  the  judges  were  mere  representatives  or  agents  of  the  ma- 
jority to  carry  out  its  will,  they  would  lose  their  judicial  character 
entirely,  and  the  so-called  administration  of  justice  would  be  a 
farce. 

With  this  understanding  of  the  special  function  of  courts 
to  control  the  government,  to  see  that  no  one  of  the  branches 
exceeds  its  powers,  and  that  no  temporary  majority  can 
infringe  the  rights  of  the  minority,  the  question  is  pre- 
sented of  the  best  means  by  which  assurance  may  be  had 
that  such  bodies  will  have  the  independence  that  will  per- 
mit them  fearlessly  to  discharge  it.  The  best  answer  to 
this  is  found  in  the  provision  that  judges  shall  be  selected 
without  regard  to  their  political  affiliations,  that  once  se- 
lected they  shall  hold  office  for  a  long  term,  for 'life,  or  dur- 
ing good  behavior,  that  they  shall  not  be  subject  to  dismissal 
by  the  executive,  may  be  removed  only  for  misconduct  as  es- 
tablished by  a  very  formal  process  of  impeachment  or  ad- 
dress on  the  part  of  both  houses  of  the  legislature,  and  that 
their  compensation  shall  not  be  withheld  or  diminished 
during  their  terms  of  office.  In  England  these  principles 
were  established  only  as  the  result  of  a  long  struggle  between 
the  people  and  the  Crown.  Down  to  and  through  the 
period  of  the  Stuart  Kings,  judges  held  office  at  the  pleas- 
ure of  the  King.  They  were  dismissed  if  they  thwarted 
the  will  of  the  King,  with  the  result  that  they  were  in  many 
cases  but  the  servile  agents  of  the  King.  Upon  the  revolu- 
tion of  1688  one  of  the  great  reforms  insisted  upon  was 
that  judges  should  hold  office  during  good  behavior.  This 


THE  JUDICIAL  BRANCH  383 

was  resisted  by  the  King,  but  was  finally  secured  by  the 
Act  of  Settlement.  Later,  provision  was  made  that  their 
salaries  should  not  be  reduced  during  their  term  of  office 
and  that  they  should  only  be  removable  upon  conviction  for 
some  serious  offense  or  upon  an  address,  that  is,  petition,  on 
the  part  of  both  houses. 

The  great  importance  of  giving  independence  to  the  ju- 
diciary was  fully  appreciated  by  the  framers  of  our  con- 
stitution. In  providing  for  the  organization  of  the  judicial 
branch,  the  provision  was  thus  made  that  the  judges  of  the 
Supreme  Court  should  be  appointed  by  the  President  and 
that  all  federal  judges,  no  matter  how  selected,  "  shall  hold 
their  office  during  good  behavior  and  shall  at  stated  times 
receive  for  their  services  a  compensation  which  shall  not  be 
diminished  during  their  continuance  in  office."  It  results 
from  this  that  federal  judges  may  be  removed  from  office 
only  upon  conviction  for  a  high  crime  or  misdemeanor  as 
established  through  the  process  of  impeachment.  Though, 
under  the  constitution,  federal  judges,  other  than  those 
of  the  Supreme  Court,  may  be  otherwise  selected,  if  the  law 
so  provides,  provision  in  all  cases  has  been  made  for  the  ap- 
pointment of  judges  by  the  President.  This  method  of  se- 
lection has  been  adopted  for  two  reasons;  one,  that  it  is 
believed  that  more  competent  judges  will  be  secured  in  this 
way ;  and,  two,  that  by  so  doing  the  selection  of  judges  is  re- 
moved from  the  field  of  partisan  politics. 

It  is  to  be.  regretted  that  this  policy  has  not  been  fol- 
lowed by  the  individual  states  in  providing  for  their  judi- 
cial systems.  In  most  of  the  states  judges  are  elected  by 
the  people,  and  in  many  cases  the  term  of  office  is  short. 
In  all  cases,  however,  provision  has  been  made  against  the 
arbitrary  dismissal  of  judges  by  the  executive.  The  opin- 
ion of  students  of  our  government  is  almost  unanimous 


384      THE  GOVERNMENT  OF  MODERN  STATES 

that  the  federal  system  is  superior  to  that  of  the  states 
and  that  it  is  largely  due  to  this  difference  that  the  fed- 
eral judiciary  has  proven  to  be  far  superior  to  that  of 
the  states.  Efforts  are  consequently  being  constantly  made 
in  the  states  to  have  the  federal  system  adopted. 


CHAPTER  XVI 

THE   ADMINISTRATIVE  BRANCH 

The  last  of  the  grand  divisions  into  which  government 
may  be  divided  is  that  known  as  the  administrative.  This 
is  the  branch  which_has^  as  its  function  the  actual  putting 
into  execution^  of  the  policies  adopted  by  the  government^ 
tn^UiHyin^fhisbranch  it  is  desirable  again  to  describe  its 
precise  position  in  the  general  scheme  of  government  and 
certain  characteristics  of  its  work,  even  though  this  may 
involve  a  measure  of  repetition  of  what  has  already  been 
given. 

Non-Political  Character  of  the  Administrative  Branch. 
—  In  our  consideration  of  the  distribution  of  governmental 
powers  functionally,  we  have  pointed  out  the  essential  dif- 
ference between  the  executive  and  the  administrative  fnnr- 
lions.  The  former  is  distinctly  of  a  political  character.  It 
involves  the  making  of  far-reaching  decisions  in  respect  to 
governmental  policies.  In  respect  to  the  actual  conduct  of 
governmental  affairs  it  has  to  do  with  seeing  that  policies 
that  are  adopted,  or  lines  of  action  that  are  decided  upon, 
are  properly  carried  into  effect  rather  than  in  undertaking 
the  work  proper  of  putting  these  policies  and  programs  into 
execution.  Or,  to  use  the  expression  employed  in  our 
constitution,  it  consists  in  seeing  that  the  laws  are  duly  en- 
forced, not  in  doing  the  work  involved  in  enforcing  such 
laws.  _TheJattexjunction,  the  administrative,  on  the  other 
hand,  strktly. speaking  involves  the  making  of  no  decisions^ 
j)Ta,pQ-litical  character.  Its  participation  in  the  making  of 

385 


386      THE  GOVERNMENT  OF  MODERN  STATES 

such  decisions  is,  or  should  be,  merely  that  of  furnishing 
to  the  policy-determining  organs  of  government,  the  legis- 
lative and  the  executive,  the  facts  which  should  be  taken  into 
account  by  those  organs  in  reaching  their  decisions.  Apart 
from  this  the  duties  of  the  administrative  branch  should 
consist  solely  in  the  execution  of  orders.  In  doing  so  po- 
litical considerations  should  have  no  weight  other  than  that 
the  work  ordered  should  be  done  in  such  a  manner  as  to 
put  into  execution  the  policies  decided  upon. 

The  distinction  here  made  is  important  in  any  form  of 
government.  It  is  especially  so  in  a  Popular  Government 
where  the  people  are  divided  into  political  parties.  No 
greater  abuse  in  government  can  take  place  than  that  of  the 
administrative  branch  of  government  using  its  powers  to 
promote  the  interests  of  any  particular  political  party.  Un- 
fortunately, this  is  a  principle  which  is  only  too  often  vio- 
lated. In  our  own  government  it  has  taken  the  form  of 
treating  many  purely  administrative  positions  as  party  spoils 
to  be  filled  by  persons  belonging  to  the  party  in  power,  rather 
than  by  those  selected  solely  with  a  view  to  their  special  com- 
petence; of  expending  public  moneys  for  public  buildings 
and  other  works  in  response  to  political  demands,  rather 
than  real  needs;  and  of  administrative  officers  using  their 
positions  to  advance  the  interests  of  their  parties.  In  times 
past  these  abuses  were  much  more  in  evidence  than  they  "are 
at  the  present  time.  Much,  however,  still  remains  to  be 
done  if  these  evils  are  to  be  completely  eliminated. 

Distinction  Between  the  Function  of  Direction,  Super- 
vision and  Control  and  That  of  Execution. —  If  the  work 
involved  in  the  administration  of  any  service  or  enterprise 
is  subjected  to  analysis  certain  important  distinctions  ap- 
pear. The  first  of  these  is  that  between  the  function  of  di- 
rection, supervision  and  control,  on  the  one  hand,  and 


THE  ADMINISTRATIVE  BRANCH  387 

execution  on  the  other.  In  small  undertakings,  and  espe- 
cially in  ones  managed  directly  by  the  owner  of  the  enter- 
prise, this  distinction  may  not  be  of  significance.  In  those 
cases  it  is  feasible  for  the  same  person  to  exercise  both 
functions,  and  the  fact  that  the  second  must  be  performed 
in  subordination  to  the  first  is  lost  sight  of.  In  all  large 
undertakings,  and  especially  in  those  such  as  modern  govern- 
ments, comprehending  the  prosecution  of  varied  lines  of 
activities,  the  distinction  is  one  of  prime  importance.  Not 
only  are  the  two  functions  to  be  clearly  distinguished  but, 
for  the  most  part,  their  performance  must  be  vested  in  sep- 
arate hands.  One  organ  should  have  responsibility  for  di- 
recting what  work  shall  be  undertaken,  for  determining  the 
general  conditions  under  which  the  work  shall  be  done,  for 
providing  the  funds  required  for  its  execution,  and  for  cur- 
rently exercising  that  general  supervision  and  control  that 
is  required  in  order  that  assurance  may  be  had  that  orders 
given  are  properly  and  efficiently  carried  out.  Other  or- 
gans should  have  the  responsibility  for  the  actual  perform- 
ance of  the  work  so  determined  upon. 

This  distinction  is  one  which,  as  we  have  pointed  out  in 
our  consideration  of  the  legislative  branch  of  government,  is 
clearly  made  in  the  government  of  the  United  States.  As  is 
there  shown,  the  whole  power  of  direction,  supervision  and 
control  of  administrative  affairs  legally  is  vested  in  Con- 
gress. The  executive  departments  and  other  administrative 
services  are  mere  agencies  of  that  body  for  the  carrying  out 
of  its  orders.  A  thorough  comprehension  of  this  fact  is 
the  first  essential  in  understanding  the  true  character  of  the 
administrative  branch  of  our  government.  This  is  all  the 
more  necessary  since  in  popular  estimation,  and,  to  a  con- 
siderable extent,  in  appearance,  the  President  seems  to 
occupy  this  position.  There  can  be  no  question  regarding 


388      THE  GOVERNMENT  OF  MODERN  STATES 

the  great  powers  of  direction,  supervision  and  control  of  the 
President  over  the  administrative  work  of  the  government. 
These  powers,  however,  are  primarily  exercised  by  him  but- 
as  an  agent  of  Congress,  which  as  a  matter  of  expediency  has 
conferred  them  upon  him.  They  are,  moreover,  greatly 
strengthened  by  three  facts  :  (  i  ),  that  the  President,  as  chief 
executive,  has  the  duty  of  seeing  that  all  laws  are  duly  en- 
forced; (2),  that  to  a  large  extent  the  power  of  appointing 
and  removing  administrative  officers  is  vested  in  his  hands  ; 
and,  (3),  that  the  position  is  now  generally  held  by  all  par- 
ties, administrative  officers,  the  public  and  Congress  itself, 
that  the  President  should  in  a  way  be  looked  upon  as  the  head 
of  the  administration.  In  taking  this  position,  however, 
^  hp  1nst'nT5i£-Ja<^-ih-at  tHpTpqTspaf  of  Trrl- 


ministrative  authority  is  in  Congress  and  not  in  the  Presi- 
dent.  The  distinction  is  that  between  the  position  and  pow- 
ers of  a  board  of  directors  and  a  president  in  an  ordinary 
corporation. 

Congress  as  a  Board  of  Directors.  —  Having  drawn  this 
distinction  between  the  function  of  direction,  supervision 
and  control  and  that  of  execution,  it  is  evident  that  the  prob- 
lem is  presented  in  the  case  of  each  of  devising  the  means 
through  which  it  may  be  effectively  performed.  In  respect 
to  the  first  but  a  few  words  will  be  required  to  make  known 
the  character  of  this  problem. 

ffo  work  nf  direction  is  performed  by  the  process  of 
legislation-  The  problem  of  organization  and  procedure  in 
its  performance  is  thus  practically  the  same  as  that  for  the 
performance  of  the  function  of  legislation  properly  speaking, 
and  need  not  therefore  be  specially  considered  here.  Men- 
tion, however,  should  be  made  of  the  fact  that  Congress,  in 
common  with  most  legislative  bodies,  has  devised  a  system 
of  committee  organization  and  procedure  with  a,  view  aj- 


THE  ADMINISTRATIVE  'BRANCH  389 

most  solely  to  the  exercise  of  its  law-making  function. 
Only  to  a  comparatively  slight  extent  has  it  organized  and 
formulated  rules  of  procedure  with  special  reference  to  the 
performance  of  its  function  as  a  board  of  directors.  The 
result  is  that  its  organization  and  methods  of  procedure  are 
riot  well  adapted  for  the  performance  of  this  function.  Es- 
pecially is  its  whole  committee  system  and  procedure  gov- 
erning the  consideration  of  appropriation  bills  which  con- 
stitute the  main  means  of  giving  administrative  directions 
defective.  Involved  in  this  question  is  the  great  problem  of 
budgetary  procedure.  This,  however,  is  so  technical  a  prob- 
hm  that  it  is  impossible  for  us  to  undertake  its  considera- 
tion.1 

When  a  board  of  directors  has  given  orders  as  to  what 
shall  be  done  it  has  discharged  but  one  phase  of  its  responsi- 
bilities. It  is  incumbent  upon  it  to  provide  means  by  which 
it  may  insure  that  its  orders  are  in  fact  carried  out ;  in  other 
words,  means  by  which  it  may  effectively  exercise  its  func- 
tion of  supervision  and  control.  The  means  available  for 
this  purpose  consist  in  the  requirement  that  its  executing 
agents,  the  administrative  services,  shall  keep  accurate  rec- 
ords of  all  their  acts  and  financial  operations;  that  at  stated 
intervals,  or  whenever  called  upon,  they  shall  submit  to  it 
detailed  reports  setting  forth  their  transactions  in  such 
form  that  their  character  and  purport  may  be  readily  under- 
stood; that  it  shall  provide  itself  with  an  agency  by  which 
these  accounts  and  reports  may  be  critically  examined ;  and, 
finally,  that  it  shall  make  provision  for  itself  considering 
the  facts  so  brought  to  its  attention,  to  the  end  that  it  may 

1  This  special  phase  of  administration  has  been  handled  at  length  by 
the  author  in  his  recent  work  "  The  Problem  of  a  National  Budget :  " 
Studies  in  Administration :  Institute  for  Government  Research.  D.  Ap- 
pleton  &  Co.,  1918. 


390      THE  GOVERNMENT  OF  MODERN  STATES 

take  such  corrective  action  as  the  facts  shown  may  warrant. 
All  modern  governments  meet  these  requirements  to  a 
greater  or  less  extent.  Administrative  departments  are  re- 
quired to  keep  records  and  accounts  and  to  submit  reports. 
These  accounts  are  subject  to  a  critical  examination  made  by 
an  officer  known  as  Auditor  or  Comptroller.  And  the  facts 
thus  rendered  available  are  given  consideration  by  the  legis- 
lature. In  few  cases,  however,  have  the  technical  problems 
involved  in  establishing  a  proper  system  of  accounts  and 
reports,  and  in  providing  for  their  audit,  been  satisfactorily 
worked  out.  Especially  is  ^this  true  of  the  United  States 
Government,  and  most  of  our  state  and  municipal  govern- 
ments. Nor  have  governments  very  generally  evolved  sat- 
isfactory means  for  considering  such  facts  as  are  brought 
out  by  these  documents.  The  result  is  that  legislative  bodies 
very  generally  fail  to  exercise  that  supervision  and  control 
over  the  conduct  of  administrative  affairs  that  is  .essential 
if  efficient  and  economical  administration  is  to  be  had.  It 
is  desired  to  emphasize  this  point,  since  responsibility  for 
bad  administration  is  too  often  placed  upon  the  executing 
agencies.  That  a  large  measure  of  responsibility  falls  upon 
them  is  undoubted.  On  the  other  hand,  it  is  of  great  im- 
portance to  recognize  that  primarily  the  responsibility  rests 
upon  the  directing  authority  which  has  failed  to  perform 
property  its  function  of  giving  the  direction  in  the  proper 
form,  of  seeing  that  records  and  reports  are  kept  and  made 
in  proper  form,  and  of  exercising  in  a  proper  way  its  func- 
tion of  supervision  and  control. 

Organization  and  Administration  of  the  Administra- 
tive Services. —  Turning  now  to  a  consideration  of  the 
problem  involved  in  the  organization,  and  the  determination 
of  the  methods  of  operation  of  administrative  services,  it 
will  be  found  that  these  problems  are  essentially  those  that 


THE  ADMINISTRATIVE  BRANCH  391 

are  presented  in  providing  for  the  conduct  of  any  'large 
enterprise.  They  may  be  classified  under  the  following  four 
heads : 

1.  Problems  of  organization. 

2.  Problems  of  personnel. 

3.  Problems  of  materiel. 

4.  Problems  of  business  practice  and  procedure. 

In  other  words,  persons  responsible  for  the  determination 
of  the  manner  in  which  the  work  of  the  administrative 
branch  of  the  government  shall  be  performed  have  to  do  the 
following  four  things:  First,  they  must  determine  the 
structural  character  or  organization  of  the  service  or  serv- 
ices by  means  of  which  the  work  of  administration  is  to  be 
performed.  Secondly,  they  must  make  provision  for  the 
manning  of  this  organization  with  a  personnel  and  the  de- 
termination of  the  conditions  under  which  such  personnel 
will  give  their  services.  Thirdly,  they  must  provide  for 
the  material  equipment  required  by  this  organization  for  the 
performance  of  its  duties  or  fix  the  conditions  under  which 
such  materiel  will  be  acquired.  And,  finally,  decision  has 
to  be  reached  regarding  the  methods  that  will  be  employed 
in  operating  the  services.  These  are  all,  it  will  be  seen, 
matters  purely  of  business  administration.  Anything  like  a 
full  examination  of  them  would  carry  us  far  beyond  the 
scope  of  the  present  work.  A  few  words  regarding  each 
to  make  their  general  purport  clear  will,  however,  be  in  place. 

Problems  of  Organization. —  Problems  of  organization 
may  be  divided  into  two  classes  which,  for  want  of  better 
terms,  may  be  designated  technical  and  general.  Viewed 
individually  and  technically,  each  administrative  service 
must  be  specially  organized  for  the  performance  of  the  par- 
ticular duties  that  it  is  to  perform.  In  this  sense  there  may 
be  said  to  be  as  many  problems  of  organization  as  there  are 


392      THE  GOVERNMENT  OF  MODERN  STATES 

classes  of  work  to  be  done.  Into  this  class  of  organization 
problems  it  is,  of  course,  impracticable  for  us  to  enter.  If 
we  disregard  these  special  and  technical  problems,  and  con- 
sider the  problems  of  organization  from  the  general  stand- 
point, it  will  be  found,  however,  that  there  are  certain  fea- 
tures that  are  more  or  less  common  to  all  services  of  any  con- 
siderable importance,  or  which  are  general  in  the  sense  that 
they  have  to  do  with  the  relations  of  services  with  each  other, 
rather  than  with  them  individually.  It  is  with  these  general 
problems  alone  that  we  can  here  concern  ourselves. 

Among  these  first  in  importance  is  that  of  working  out 
a  systematic  scheme  of  organization  units  for  the  handling 
of  the  administrative  work  to  be  done.  This  means  reach- 
ing a  decision  regarding  the  specific  services  that  shall  be 
created,  the  manner  in  which  these  services  shall  be  grouped, 
and  the  nature  of  the  relations  that  shall  obtain  among  them. 
In  practice  this  problem  has  been  met  by  governments  in 
two  ways.  The  first  consists  in  the  establishment  of  as 
many  independent  services,  in  the  form  of  bureaus,  boards, 
commissions,  etc.,  as  there  are  classes  of  activities  to  be  per- 
formed, each  of  these  services  having  relations  directly  with 
the  legislature  creating  it.  This  is  the  system  which  has 
generally  been  adopted  by  our  states.  The  second  consists 
in  the  establishment  of  a  system  where  the  attempt  is  made 
to  group  these  several  services  according  to  their  character 
into  departments.  This  system  which  is  known  as  an  in- 
tegrated system  of  administration  is  the  one  which  has  been 
adopted  by  our  national  government. 

Of  the  relative  merits  of  these  two  systems  there  can 
be  no  question.  The  second  is  far  superior.  It  makes  pro- 
vision for  an  effective  overhead  administration  and  control, 
permits  of  a  logical  distribution  of  duties  among  services, 
lessens  the  danger  of  overlapping  of  jurisdictions  and  dupli- 


THE  ADMINISTRATIVE  BRANCH  393 


cation  of  organization  and  activities;  facilitates  the  estab- 
lishment of  cooperative  relations  between  services  and  ren- 
ders easier  the  standardization  of  methods. 

At  the  present  time  few  reforms  of  government  in  the 
United  States  are  more  urgent  than  that  of  the  reorganiza- 
tion of  the  administrative  services  of  our  state  governments, 
so  as  to  put  them  upon  the  integrated  or  departmental  basis. 
Fortunately,  the  need  for  this  reform  is  being  appreciated 
and  a  number  of  the  states,  of  which  Illinois  is  a  notable  ex- 
ample, have  entered  upon  this  work.  In  the  case  of  the 
national  government  also  much  remains  to  be  done. 
Though  it  has  adopted  the  right  system,  it  has  not  in  all 
cases  worked  out  the  details  in  a  satisfactory  manner.  This 
has  arisen  from  the  fact  that  the  system  was  not  established 
all  at  once,  but  has  come  into  existence  by  a  process  of  grad- 
ual growth.  The  time  has  consequently  come  when  the 
whole  administrative  branch  of  the  national  government 
should  be  subjected  to  a  detailed  examination  with  a  view 
to  determining  what  new  departments,  if  any,  should  be 
created,  what  new  grouping  of  services  should  be  made  de- 
partmentally,  what  changes  should  be  made  in  the  distri- 
bution of  duties  among  the  several  services,  and  what  steps 
should  be  taken  better  to  standardize  their  internal  organiza- 
tion and  methods  of  procedure.  Especially  has  this  ne- 
cessity become  urgent  since  the  creation  of  the  large  num- 
ber of  special  agencies  that  have  been  established  for  meet- 
ing the  war  needs  of  the  government.  A  thorough  reor- 
ganization of  its  administrative  branch  thus  constitutes  one 
of  the  important  tasks  of  reconstruction  confronting  our 
government  upon  the  conclusion  of  the  war. 

Another  general  problem  of  administration  is  that  of  cre- 
ating a  central  service  to  exercise  immediate  supervision  and 
control  over  the  organization,  activities,  and  methods  of 


394      THE  GOVERNMENT  OF  MODERN  STATES 

work'of  the  several  services.  We  have  seen  that  the  func- 
tion of  general  direction,  supervision  and  control  is,  under 
our  system  of  government,  vested  in  the  legislature.  It  is 
impossible,  however,  for  that  body  to  exercise  this  function 
except  in  the  most  general  manner.  The  members  of  those 
bodies  have  neither  the  technical  qualifications  nor  the  time 
to  exercise  the  current,  day-to-day  direction,  supervision 
and  control  that  must  be  had  if  efficiency  in  operation  is  to 
be  secured.  This  can  be  done  only  by  officials  giving  their 
whole  attention  to  the  work,  and  in  immediate  touch  with 
operations.  The  duties  of  such  a  central  administrative 
service  consist  in  formulating  and  prescribing  systems  of 
accounts  and  reports  that  will  be  uniform  for  all  the  serv- 
ices ;  in  standardizing  methods ;  in  acting  as  the  body  to  re- 
ceive, compile  and  present  to  the  legislature  the  estimates  of 
appropriations  needed ;  in  settling  disputes  between  services 
in  respect  to  their  respective  jurisdictions;  and  generally  in 
attending  to  those  matters  which  concern  all  the  services 
rather  than  the  services  individually. 

Special  mention  is  made  of  this  problem,  since  so  little 
has  been  done  in  either  our  national  or  state  governments 
to  meet  it.  In  the  case  of  the  former,  the  President,  as  we 
have  seen,  has,  in  effect,  been  given  the  duties  of  adminis- 
trator-in-chief,  and  the  whole  tendency  in  the  governments 
of  the  states  is  to  erect  the  Governor  into  a  similar  officer. 
In  no  case,  however,  has  adequate  provision  been  made  for 
a  central  bureau  of  administration,  through  which  the  Pres- 
ident or  Governor  may  properly  perform  his  duties  as  chief 
administrator.  The  provision  of  such  a  service  thus  con- 
stitutes one  of  the  essential  steps  in  putting  the  administra- 
tive branches  of  our  national  and  state  governments  upon  an 
efficient  basis.  In  England  this  requirement  has  been  ad- 
mirably met  in  the  Treasury  Department.  That  depart- 


THE  ADMINISTRATIVE  BRANCH  395 

ment,  notwithstanding  its  name,  is  not  a  service  for  the 
management  of  the  financial  services  properly  speaking.  It 
is  purely  a  service  of  general  overhead  administration  for  the 
performance  of  the  duties  which  we  have  stated  belong  to 
such  a  service.1 

Turning  now  to  a  consideration  of  the  problems  pre- 
sented in  the  organization  of  individual  services,  a  first  re- 
quirement of  efficiency  is  a  recognition  of  the  distinction  be- 
tween what  is  known  as:  (i)  General  Administration,  (2) 
Staff,  and  (3)  Line.  Just  as  it  is  necessary  that  the  admin- 
istrative~^Branch  of  the  government  as  a  whole  should  have 
a  service  of  general  administration,  so  each  department  and 
each  important  bureau  or  other  subdivision  should  have  a 
similar  service.  If  we  analyze  the  work  of  any  service,  it 
will  be  found  to  be  of  two  kinds:  (i)  that  having  to  do 
with  the  maintenance  and  operation  of  the  service  as  a  serv- 
ice; and  (2)  that  having  to  do  with  the  performance  of  the 
work  for  which  the  service  is  created  and  maintained.  The 
first  class  of  duties  consists  of  such  work  as  the  provision, 
maintenance  and  care  of  plant,  quarters,  and  equipment,  the 
recruitment  of  personnel,  the  receipt,  custody  and  disburse- 
ment of  funds,  the  keeping  of  accounts  and  rendition  of 
reports,  and  purchase  and  issue  of  materials  and  supplies, 
the  handling  and  filing  of  correspondence,  etc.  It  is  very 
desirable  that  this  class  of  duties,  which  is  commonly  known 
as  that  of  general  administration,  should  be  carefully  segre- 
gated and  entrusted  to  a  special  group  of  officers  under  an 
executive  officer  whose  sole  responsibility  is  that  of  seeing 
that  these  duties  are  properly  performed. 

iFor  a  full  account  of  the  functions  of  this  department  see,  "The 
System  of  Financial  Administration  of  Great  Britain,"  by  W.  F.  Wil- 
loughby,  W.  W.  Willoughby,  and  S.  M.  Lindsay.  Studies  in  Adminis- 
tration, Institution  for  Government  Research.  D.  Appleton  &  Co., 
IQI7. 


396      THE  GOVERNMENT  OF  MODERN  STATES 

In  most  services  of  importance,  and  especially  those  whose 
line  activities  are  of  a  technical  character,  there  also  exists 
the  need  for  a  corps  of  technical  advisers.  These  advisers 
are  collectively  known  as  the  staff.  Their  duties  are  those 
of  research,  critical  examination  of  work  programs  and 
methods,  and  the  giving  of  advice.  They  do  not,  or  at  least 
should  not,  have  any  administrative  duties  properly  speaking. 
The  best  example  of  such  a  service  is  that  of  the  General 
Staff  of  the  War  Department.  Here,  too,  it  is  desirable 
that  this  class  of  work  should  be  carefully  segregated  and 
placed  under  the  direction  of  an  officer  known  as  Chief  of 
Staff. 

Finally,  there  is  the  class  of  duties  consisting  of  the  actual 
performance  of  the  work  for  which  the  service  is  maintained. 
The  units  performing  this  work  constitute  what  are  known 
as  the  operating  departments  and  the  work  itself  is  of  a 
special  or  technical  character. 

We  have  given  this  analysis  of  the  work  of  any  large  and 
complex  service,  not  as  one  that  is  generally  recognized  and 
acted  upon  in  organizing  the  administrative  branch  of  a 
government,  but  as  one  which  should  be  given  considera- 
tion in  doing  that  work.  In  point  of  fact  the  distinction 
is  one  which  finds  expression  in  few  governmental  systems. 
It  is,  therefore,  all  the  more  desirable  that  it  should  be 
here  considered  where  the  main  purpose  is  to  get  before  the 
student  the  problem  of  government  rather  than  a  mere  de- 
scription of  governments  as  they  exist. 

Problems  of  Personnel. —  Problems  of  personnel  con- 
stitute the  second  of  the  four  groups  into  which  for  purposes 
of  study  we  have  divided  the  problems  of  public  adminis- 
tration. Of  these  groups  it  is  at  once  one  of  the  most  im- 
portant, most  complex,  in  the  sense  of  presenting  a  multi- 
tude of  phases  or  considerations,  and  most  needing  care- 


THE  ADMINISTRATIVE.  BRANCH  397 

ful  analysis  and  study.  It  includes  such  problems  as  those 
of  determining  the  method  of  recruiting  employees,  fixing 
their  compensation,  providing  means,  through  efficiency  rec- 
ords or  otherwise,  of  passing  upon  the  manner  in  which  they 
discharge  their  duties,  and  of  making  promotions,  classify- 
ing employees  according  to  the  nature  of  their  work,  formu- 
lating rules  to  govern  the  matter  of  the  discipline  and,  if 
need  be,  discharge  of  employees,  and  scores  of  other  like 
questions.  All  of  these  are  matters  of  great  importance. 
No  amount  of  care  in  determining  how  a  government  shall 
be  organized  for  the  performance  of  its  work,  the  particular 
practices  and  procedure  that  shall  be  employed  by  it  and  the 
manner  in  which  the  funds  necessary  for  its  support  shall  be 
raised  and  expended,  will  give  even  a  measurable  approach  to 
efficiency  in  the  actual  administration  of  public  affairs  un- 
less a  technically  competent  personnel  can  be  secured  and  re- 
tained in  the  service  and  a  system  is  devised  whereby  this 
personnel  may  be  effectively  directed  and  controlled. 

Into  these  questions  it  is  impossible  for  us  here  to  enter, 
important  though  they  are  and  much  as  they  need  attention 
in  this  country.  There  are,  however,  certain  general  phases 
of  the  problem  which  concern  the  very  foundation  of  a  gov- 
ernment personnel  system  which  should  receive  attention. 

If  we  examine  the  personnel  systems  of  the  leading  gov- 
ernments of  the  world,  it  will  be  found  that  they  are  funda- 
mentally different  according  to  the  principles  on  which  they 
are  based.  At  one  end  of  the  scale  stands  the  purely  bureau- 
cratic type  of  Prussia.  Much  misapprehension  exists  in  re- 
gard to  the  true  character  of  this  system  due  to  the  two 
senses  in  which  the  term  "  bureaucratic  "  may  be  employed 
in  describing  a  system  of  organization  and  personnel  admin- 
istration. In  its  larger  sense  this  term  is  used  to  describe 
any  personnel  system  where  the  employees  are  classified  in  a 


398      THE  GOVERNMENT  OF  MODERN  STATES 

system  of  administration  composed  of  a  hierarchy  of  sec- 
tions, divisions,  bureaus,  departments  and  the  like.  Used 
in  this  sense  there  can  be  nothing  to  justify  the  prejudices 
which  exist  in  the  United  States  against  what  is  known  as 
a  bureaucracy.  Such  a  system  is  in  fact  the  one  that  must 
be  established  in  the  case  of  any  large  undertaking  if  effi- 
ciency in  operation  is  to  be  secured. 

The  term  bureaucracy  can  be,  and  is,  however,  used  in  a 
much  more  restricted  and  special  sense  as  descriptive  of  a 
body  of  public  servants  organized  in  a  hierarchical  system 
which  stands  outside  of  the  sphere  of  effective  public  control. 
It  is  in  this  sense  that  it  is  employed  in  designating  the  Prus- 
sian civil  service  system.  The  prime  characteristic  of  this 
system  is  that  it  represents  a  body  of  public  servants  owing 
their  positions  directly  to  the  authority  of  the  King.  They 
are  in  the  fullest  possible  acceptance  of  the  term  but  the 
servants  of  the  King,  the  agents  through  whom  he  exercises 
his  autocratic  powers  as  head  of  the  administration.  Due 
to  this  fact  the  King  has  been  able  to  organize  the  civil 
branch  of  the  government  upon  a  basis  substantially  similar 
to  the  military  branch  of  the  government.  It  constitutes  as 
distinct  a  career  as  those  of  the  military  and  naval  establish- 
ments. Special  provisions  exist  for  the  education  and  train- 
ing of  those  contemplating  adopting  its  several  branches  as 
careers.  After  entrance,  members  of  it  advance  in  a  regu- 
lar gradation  of  positions  and  in  conformity  with  general 
regulations.  Their  tenure  of  office  is  as  fixed  and  secure  as 
in  the  case  of  the  military  and  naval  services.  Practically 
the  same  care  is  given  to  the  determination  of  the  titles  em- 
ployed in  designating  officers  of  different  grades  and  to  the 
social  and  other  advantages  and  prerogatives  attaching  to 
such  offices  as  in  those  services.  The  result  of  these  pro- 
visions is  to  bring  into  existence  a  body  of  public  servants 


THE  ADMINISTRATIVE  BRANCH  399 

who  constitute  a  distinct  class  in  the  community  in  the  same 
way  as  do  the  military  and  naval  forces.  This  condition,  it 
should  be  stated,  obtains  not  only  in  respect  to  the  national 
government,  but  to  a  scarcely  less  degree  in  the  case  of  the 
municipal  and  other  local  governments  of  the  kingdom. 
Even  the  office  of  Burgermeister  or  chief  executive  of  cities 
is  a  profession  and  persons  holding  this  office  pass  freely 
from  one  city  to  another. 

There  can  be  no  question  of  the  advantages  which  such  a 
system  offers  from  the  standpoint  of  efficiency.  Under  it 
conduct  need  be  dictated  only  by  considerations  of  admin- 
istrative efficiency.  There  is  every  incentive  to  secure  effi- 
cient employees  and  to  enforce  efficiency  in  the  performance 
of  duties. 

We  have  mentioned  this  point  with  special  care  since 
there  exists  such  a  widespread  misconception  in  respect  to 
the  secret  of  the  undoubted  efficiency  of  the  Prussian  civil 
service  administration.  Commonly  it  is  ascribed  to  the  pe- 
culiar efficiency  and  capacity  for  organization  of  the  German. 
In  point  of  fact,  it  is  doubtful  whether  the  individual  Ger- 
man has  an  ability  or  a  capacity  for  organization  equal  or 
superior  to  that  of  the  American.  The  real  explanation  of 
the  efficiency  of  the  German  system  is  to  be  found  in  the 
characteristic  which  we  have  mentioned;  namely,  the  auto- 
cratic basis  upon  which  it  rests  in  respect  to  the  status  and 
powers  of  the  personnel  and  its  independence  of  outside 
pressure  and  control. 

Notwithstanding  the  advantages  of  this  system  examina- 
tion will  show  that  there  are  inherent  in  it  certain  disad- 
vantages or  dangers  which  go  far  towards  justifying  the 
deep-seated  distrust  that  Americans  have  of  it.  The  fact 
that,  under  it,  government  employees  are  servants  of  the 
Crown  rather  than  of  the  people  tends  to  make  them,  not 


400      THE  GOVERNMENT  OF  MODERN  STATES 

only  unresponsive  to  public  demands,  but  to  assume  a  su- 
perior or  overbearing  attitude  to  the  public.  That  this  fea- 
ture is  very  much  in  evidence  in  the  Prussian  system  any  one 
who  has  had  contact  with  it  can  testify.  All  of  the  evils  of 
militarism,  as  they  concern  the  relations  between  the  mili- 
tary establishment  and  the  general  population,  are  latent 
if  not  positively  expressed,  in  the  case  of  a  bureaucracy  such 
as  we  have  been  describing. 

What  is  of  far  greater  importance,  however,  is  the  power 
which  this  system  gives  to  a  ruler  to  control  both  the  gen- 
eral social  and  political  life  of  the  people.  In  Prussia  this 
power  has  been  exercised  by  the  King  in  a  most  ruthless 
manner  to  control  elections  and  to  secure  the  attainment  of 
his  political  aims.  In  a  very  direct  way  the  system  has  been 
used  as  an  instrument  to_jestrict  the  liberties  of  the  peo- 
ple. 

With  a  true  understanding  of  the  nature  of  a  bureaucracy 
it  must  be  apparent  that  the  dangers  which  the  American 
people  apprehend  as  residing  in  this  type  of  organization 
are  under  American  conditions  wholly  non-existent.  ^A.  bu- 
reaucracy of  the  Prussian  type  can  only  exist  in  a  govern- 
ment resting  upon  the  principle  of  autocracy.)  (in  America 
all  political  powers  are  derived  from  the  people  and  final  au- 
thority over  all  political  agents  is  in  their  hands.]  The  ob- 
jections to  a  bureaucracy  'which  we  have  named,  in  a  word, 
are  not  due  to  the  existence  of  a  permanent  civil  service 
highly  organized  in  a  hierarchical  system,  but  to  the  location 
of  the  supreme  power  over  this  system.  There  is  thus  no 
reason  why  the  American  people,  if  they  are  so  minded, 
may  not  secure  a  civil  service  possessing  most,  if  not  all,  of 
the  advantages  of  the  Prussian  bureaucracy  with  none  of  its 
dangers  and  disadvantages.  We  may  go  further  than  this 
and  say  that,  until  we  are  prepared  to  bring  into  existence 


THE  ADMINISTRATIVE  I  BRANCH  401 

a  bureaucracy  in  the  sense  of  a  well-organized  hierarchy  of 
permanent  positions,  it  will  be  impossible  to  secure  a  thor- 
oughly efficient  personnel  system. 

In  England  we  have  another  type  which  may.  be  charac- 
terized as  the  aristocratic  in  contrast  with  the  autocratic 
type  of  Prussia.  A  distinguishing  feature  of  this  system  is 
the  sharp  distinction  which  is  drawn  between  different 
grades  of  personnel,  and  the  difficulty  which  exists  in  pass- 
ing from  one  grade  to  another.  There  is  first  the  class  of 
permanent  under  secretaries  and  assistant  secretaries.  No 
attempt  is  made  to  apply  the  competitive  principle  in  recruit- 
ing this  class.  Its  members  hold  office  by  appointment  based 
upon  the  personal  judgment  of  the  appointing  officers  as  to 
their  capacities;  and  selections  may  be  made  from  persons 
already  in  the  government  service  or  who  have  never  held 
public  office.  The  theory  is  that  the  qualifications  desired  of 
this  class  are  of  so  special  a  character,  involve  to  so  large 
an  extent  the  matter  of  personal  equation,  and  the  relations 
between  them  and  their  appointing  officers  are  of  so  personal 
a  nature,  that  the  latter  should  have  broad  discretionary 
powers  in  making  their  selections.  Next  there  is  the  class  of 
superior  administrative  officers  to  whom  is  given  the  desig- 
nation of  first  class  clerks.  This  class  includes  all  those 
who,  subject  to  the  authority  of  their  superior  officers,  the 
heads  of  the  departments,  the  under  secretaries  and  assistant 
secretaries,  occupy  the  more  important  positions  and  con- 
stitute the  great  bulk  of  what  may  be  called  the  directing  per- 
sonnel. This  class  is  almost  wholly  recruited  by  means  of 
special  competitive  examination,  the  conditions  and  char- 
acter of  which  are  so  fixed  that  practically  only  graduates 
of  the  universities  of  Oxford  and  Cambridge  can  hope  to 
compete  with  success.  Only  in  exceptional  cases  are  these 
positions  filled  by  promotion  of  employees  in  the  lower  ranks. 


402      THE  GOVERNMENT  OF  MODERN  STATES 

Finally,  there  are  a  number  of  classes  of  subordinate  per- 
sonnel, the  ranks  of  which  are  recruited  by  special  com- 
petitive examinations,  and  in  less  degree  by  promotion  of 
persons  within  the  services. 

This  system  is  based  upon  substantially  the  same  princi- 
ples and  considerations  that  obtain  in  the  military  and  naval 
services.  Substantially  the  same  clear  distinction  is  made 
between  the  directing  personnel,  or  officer  class,  and  the  gen- 
eral line  of  employees,  that  is  made  in  the  latter  services  be- 
tween commissioned  officers  and  enlisted  men.  And  the  same 
difficulty  exists  in  passing  from  one  class  to  another  that  ob- 
tains in  those  services.  The  theory  is,  though  it  is  not  al- 
ways openly  avowed,  that  the  directing  personnel  should, 
not  only  have  qualifications  which  can  only  be  secured  by 
special  training  such  as  is  given  in  higher  universities,  but 
that  they  should  be  drawn  from  the  upper  classes  of  the  pop- 
ulation. This^system,  which  is  often  described  as  one  of 
water-tight  compartments,  is,  it  will  be  observed,  congenial 
to  the  aristocratic  character  of  the  social  system  of  England. 
Primarily  its  adoption  is  due  to  this  fact,  rather  than  to  the 
deliberate  opinion  on  the  part  of  those  entrusted  with  the 
conduct  of  public  affairs  of  its  intrinsic  merit.  The  argu- 
ments that  are  brought  forward  in  favor  of  it  represent  thus 
but  the  effort  to  justify  a  decision  that  has  been  made  upon 
other  grounds. 

The  system  of  the  United  States  presents  still  a  third 
type  of  civil  service  organization.  In  thus  characterizing 
the  American  civil  service  as  a  distinct  type,  reference  is 
not  made  to  one  of  its  most  characteristic  features,  the  ex- 
tent to  which  public  offices  are  treated  as  political  spoils,  but 
rather  to  the  character  that  has  been  given  to  the  system 
where  the  effort  has  been  made  to  take  it  outside  of  the  do- 
main of  politics  and  put  it  upon  a  merit  basis.  A  distin- 


THE  ADMINISTRATIVE  BRANCH  403 

guishing  feature  of  both  the  German  and  English  systems  is 
that  they  are  based  upon  the  principle  of  recruiting  their  per- 
sonnel from  among  young  people  just  leaving  school  and 
who  have  deliberately  selected  the  government  service  as 
their  life  occupation.  Thus,  in  the  English  system  candi- 
dates for  first-class  clerkships  must  be  between  the  ages  of 
22  and  24  years,  those  for  second  division  clerkships  from 
17  to  20  years,  and  those  for  the  position  of  boy  clerks 
from  15  to  17  years.  It  results  from  this  that  the  whole  sys- 
tem of  entrance  examinations  is  framed  on  the  basis  of  de- 
termining merely  the  general  qualifications  of  candidates. 
They  will  receive  their  technical  training  for  the  perform- 
ance of  particular  tasks  after  they  are  in  the  service.  All 
these  features,  it  will  be  observed,  are  consonant  with  the 
principle  of  making  the  public  service  a  permanent  career  for 
its  personnel. 

In  the  United  States  the  whole  principle  upon  which  the 
personnel  system  is  based  is  radically  different.  The  theory 
seems  to  be  that  the  government  service  is  not  onejto  be  de- 
liberately adopted  by  young  persons  as  thei£jtife  vocation. 
The  age  requirements  are  such  that  persons  wdljtlpjjg_iiilife 
may  enter ;  and,  in  fact,  to  a  large  extent,  persons  entering 
the  government  service  have  previously  been  employed  in 
other  capacities.  Entrance_examinations,  instead  of  being 
of  a  general  character,  are  highly  specialized.  The  effort 
is  made  to  secure  persons  already  possessing  the  particular 
technical  training  fitting  them  to  perform  the  work  called 
for  by  the  particular  positions  to  be  filled. 

This  is  not  the  place  to  consider  the  relative  merits  of 
these  systems.  All  that  it  is  sought  to  do  here  is  to  make 
evident  that  a  government  should  carefully  determine  the 
general  features  of  the  personnel  system  that  it  desires  to 
possess  before  seeking  to  work  out  any  of  its  details,  since 


404      THE  GOVERNMENT  OF  MODERN  STATES 

as  has  been  shown,  the  system  adopted  will  control  many  fea- 
tures, among  the  most  important  of  which  is  that  of  the  re- 
quirements that  will  be  demanded  of  candidates  for  entrance 
to  the  service. 

Problems  of  Materiel. —  Under  the  heading  of  Problems 
of  Materiel  are  grouped  all  those  questions  having  to  do  with 
the  securing  and  handling  of  the  physical  plants,  equipment, 
materials  and  supplies  needed  by  administrative  services  for 
the  performance  of  their  work.  They  are  questions  which 
confront  all  services,  though  in  some  they  are  much  more  im- 
portant than  in  others.  In  a  small  undertaking,  and  espe- 
cially in  one  under  the  direct  management  of  the  owner,  the 
procurement  of  the  materials,  equipment  and  supplies  needed 
for  the  conduct  of  the  undertaking,  though  a  matter  of  prime 
importance  and,  indeed,  one  where  the  efficiency  with  which 
it  is  performed  often  determines  the  success  of  the  enter- 
prise, is  nevertheless  a  matter  giving  rise  to  no  difficult  ques- 
tions of  organization  and  procedure.  In  such  undertakings 
such  work  is  usually  handled  directly  by  the  owner  or  general 
manager.  All  that  it  requires  is  the  exercise  of  sound  judg- 
ment in  respect  to  requirements,  and  due  care  in  meeting 
these  requirements,  which  latter  can  usually  be  done  by  di- 
rect purchase  in  the  open  market. 

Immediately  upon  an  undertaking  assuming  any  magni- 
tude the  whole  nature  of  the  problem  changes.  Especially 
is  this  true  when  the  undertaking  is  of  a  character  involving 
the  performance  of  a  variety  of  activities  or  the  production 
of  a  wide  range  of  products.  And  still  more  is  it  true  of  a 
government  which,  in  addition  to  engaging  in  numerous  dif- 
ferent lines  of  work,  has  to  carry  on  its  operations  under 
special  legal  restrictions  having  for  their  purpose  to  ensure 
fidelity  on  the  part  of  all  officers  and  employees. 

One  of  the  first  consequences  of  this  changed  condition 


THE  ADMINISTRATIVE  BRANCH  405 

of  affairs  is  the  necessity  for  definitely  segregating  the  func- 
tion of  procurement  of  articles  required  for  the  due  conduct 
of  the  affairs  of  services  from  that  of  their  utilization,  and 
of  vesting  these  two  functions  in  the  hands  of  separate  of- 
fices or  units  of  organization.  This  is  necessary  for  two 
reasons :  First,  it  is  desirable  that  those  charged  with  op- 
erations proper  shall,  as  far  as  possible,  be  relieved  of  all 
collateral  obligations  and  responsibilities  and  be  placed  in  a 
position  where  they  can  devote  their  whole  attention  and 
energies  to  the  work  in  hand.  Secondly,  the  work  of  pro- 
curing the  articles  needed  becomes  one  requiring  such  a 
variety  of  highly  specialized  knowledge  and  experience 
that  it  can  be  effectively  performed  only  by  officers  devoting 
themselves  exclusively  to  the  work.  The  best  example  of 
the  need  for  and  the  actual  segregation  of  such  duties  is  fur- 
nished by  our  War  Department.  Here  the  line,  or  army 
proper,  does  not  concern  itself  with  the  securing  of  ordnance, 
ammunition,  trucks,  uniforms,  and  the  thousand  and  one 
other  articles  required  by  it  for  the  conduct  of  its  operations 
in  the  field.  All  this  work  is  attended  to  by  the  so-called 
great  supply  services,  the  Quartermaster's  Department,  the 
Ordnance  Department,  etc. 

The  procurement  of  supplies  constitutes  but  one  phase  of 
the  supply  problem.  Others  consist  in  definitely  formulat- 
ing requirement  needs  in  the  form  of  specifications,  in  pro- 
viding for  the  receipt,  custody  and  issue  of  supplies,  in  sub- 
jecting them  to  examination  for  the  purpose  of  determin- 
ing whether  they  are  of  the  quantity  and  quality  called  for. 
In  a  government  a  question  of  great  importance  is  whether 
each  service  shall  have  its  own  supply  service  or  whether 
the  work  of  supply  shall  be  handled  by  central  purchasing  de- 
partments. At  the  present  time  the  tendency  is  strongly 
in  the  direction  of  the  latter  alternative. 


406      THE  GOVERNMENT  OF  MODERN  STATES 

Into  questions  of  administrative  details  such  as  these  we 
cannot  of  course  enter.  We  shall  have  to  content  ourselves 
with  doing  little  more  than  making  known  the  special  char- 
acter and  importance  of  this  aspect  of  organizing  the  ad- 
ministrative branch  of  a  government  as  a  going  concern.1 

Problems  of  Business  Practice  and  Procedure. —  Hav- 
ing made  provision  for  the  organization  of  the  administra- 
tive branch  of  the  government  and  the  furnishing  to  it  of  the 
personnel  and  physical  equipment  and  supplies  needed  by  it 
for  the  performance  of  its  work,  there  then  remains  the  duty 
of  formulating  the  rules  of  procedure  under  which  the  work 
will  actually  be  carried  on.  By  this  is  meant  not  the  adop- 
tion of  the  technical  methods  that  will  be  employed  by  the 
operating  units,  but  the  general  business  procedure  that  will 
be  employed  that  the  work  as  a  whole  may  efficiently  go  on. 
Among  the  matters  coming  in  this  field  are  such  as  the 
handling  and  filing  of  correspondence  and  other  documents, 
the  keeping  of  property  records,  the  provision  of  means  by 
which  those  in  authority  may  keep  themselves  currently  in- 
formed regarding  work  projected,  under  way,  or  accom- 
plished, and  be  in  a  position  effectively  to  exercise  their 
function  of  control,  and,  above  all,  the  keeping  of  accounts 
that  will  accurately  record  all  financial  transactions,  and  the 
preparation  and  rendition  of  reports  that  will  render  the 
facts  so  recorded  readily  available. 

This  last  constitutes  one  of  the  most  important  problems 
of  administration  that  confront  any  government.  It  in- 
volves the  whole  great  question  of  how  revenue  shall  be 
collected,  how  disbursed,  accounted  for,  audited  and  re- 

1For  a  consideration  in  detail  of  the  problems  of  purchasing  on  the 
part  of  governments,  see  "  Principles  of  Government  Purchasing,"  by 
A.  G.  Thomas.  Studies  in  Administration,  Institute  for  Government 
Research.  D.  Appleton  &  Co.,  1918. 


THE  ADMINISTRATIVE  BRANCH  407 

• 
ported.     Financial  accounts  constitute  far  the  most  effective 

means  of  judging  regarding  needs  and  accomplishments. 
Unless  accurate  records  are  kept  of  all  revenues  and  expen- 
ditures and  full  and  detailed  reports  made  of  them  it  is  im- 
possible either  for  administrators  or  those  responsible  for 
formulating  governmental  policies  properly  to  perform 
their  work.  In  the  past  the  accounts  of  our  governments 
have  in  general  been  so  kept  as  to  provide  for  a  due  ac- 
counting for  all  moneys  secured  and  disbursed.  They  have 
not  been  kept,  however,  in  such  a  form  as  to  furnish  the 
information  required  for  intelligent  legislative  and  admin- 
istrative control.  Improvement  in  this  respect  is  being 
made  but  much  yet  remains  to  be  done. 


CHAPTER  XVII 

THE  ROLE  OF  POLITICAL  PARTIES  IN  MODERN  GOVERNMENTS 

In  our  examination  of  the  electoral  branch  of  government 
we  have  purposely  refrained  from  giving  consideration  to 
the  most  striking  feature  of  electoral  activities  as  actually 
manifested,  namely,  that  everywhere  the  electorate  tends 
to  split  itself  up  into  groups  of  electors  known  as  political 
parties  to  the  end  that  unity  of  action  may  be  had  by  those 
who  think  alike  in  respect  to  who  shall  be  elected  as  their 
representatives  and  what  shall  be  the  policies  that  they  de- 
sire such  representatives  to  put  into  execution.  There  is  no 
more  difficult,  and  few  more  important,  problems  in  the 
whole  domain  of  political  science  than  that  presented  by  this 
phenomenon  of  political  parties.  It  has  fundamentally  al- 
tered the  whole  problem  of  government.  It  is,  therefore, 
desirable  that  it  should  receive  special  attention. 

Political  Parties  a  Recent  Phenomenon. —  In  studying 
this  phenomenon  of  political  parties  the  first  fact  to  strike 
the  inquirer  is  that,  in  their  modern  form  at  least,  they  are 
of  comparatively  recent  development.  They  can  hardly  be 
said  to  go  back  to  the  nineteenth  century.  Their  rise  in 
fact  coincides  with  the  rise  and  development  of  Popular 
Government. 

Political  Parties  First  Viewed  as  an  Evil. —  A  second 
important  fact  that  at  once  appears  is  that  at  the  start  there 
was  no  appreciation  of  the  inevitableness  of  the  rise  of  these 
organizations,  much  less  of  the  dominant  part  that  they  were 
to  play  in  the  political  life  of  all  peoples  having  a  Popular 

408 


THE  ROLE  OF  POLITICAL  PARTIES         409 

Government.  More  than  this  their  rise  has  in  all  cases  been 
looked  upon  aj  an  evil  and  as  constituting  a  serious  danger 
to  the  state.  "  No  one  in  the  eighteenth  century,"  writes 
Mr.  A.  Lawrence  Lowell,  in  his  exceedingly  able  work  on 
"  The  Government  of  England,"  l  "  foresaw  party  govern- 
ment as  it  exists  today,  enfolding  the  whole  surface  of 
public  life  in  its  constant  ebb  and  flow.  An  occasional  man 
like  Burke  could  speak  of  party  without  condemnation; 
but  with  most  writers  on  political  philosophy  parties  were 
commonly  called  factions,  and  were  assumed  to  be  subversive 
of  good  order  and  the  public  welfare  ...  To  them  the 
idea  of  a  party  opposed  to  the  government  was  associated 
with  a  band  of  selfish  intriguers,  or  a  movement  that  en- 
dangered the  public  peace  and  the  security  of  political  in- 
stitutions. .  .  .  They  (political  parties)  were  never  far  re- 
moved from  violence.  When  the  opposition  of  those  days 
did  not  actually  lead  to  bloodshed,  it  was  perilously  near  to 
plots  and  insurrection;  and  the  fallen  minister,  who  was 
driven  from  power  by  popular  feeling  or  the  hostility  of 
Parliament,  passed  under  the  shadow  at  least  of  the  scaf- 
fold." 

This  is  practically  the  conception  that  the  framers  of  our 
constitution  had  of  these  bodies.  One  has  but  to  read  the 
constitution  to  appreciate  that  its  framers  had  no  idea  that 
political  parties  would  become  one  of  the  essential  features 
of  our  political  system.  This  arose  from  the  belief  on  their 
part  that  they  were  creating  a  government  of  a  purely  rep- 
resentative character,  one  where  the  people  would  attempt 
to  do  nothing  in  the  way  of  directly  formulating  policies  or 
determining  what  would  be  done  by  their  government,  but 
would  content  themselves  with  selecting  representatives  who 
would  act  for  them  in  all  capacities.  Their  ideal  was  that 

i  Vol.  I,  p.  436. 


410      THE  GOVERNMENT  OF  MODERN  STATES 

of  the  modern  large  corporation  where  the  stockholders  con- 
fine their  activities  to  the  election  of  a  few  chief  officers  and 
a  board  of  directors  and  leave  to  these  officers  the  whole  re- 
sponsibility for  the  formulation  of  policies  as  well  as  their 
execution. 

It  is  hardly  necessary  to  say  how  completely  these  early 
ideas  both  in  England  and  the  United  States  have  failed  of 
realization.  Electorates  have  not  been  content  to  occupy 
this  comparatively  neutral  position.  Everywhere  they  have 
formed  themselves  into  political  groupings  for  the  purpose 
of  effectively  making  known  their  wishes,  until  today  such 
groupings  constitute  integral  parts  of  the  political  machinery 
of  most  modern  nations. 

Political  Parties  Not  a  Deliberate  Creation  of  Law. — 
A  third  noteworthy  fact  about  these  organizations  is  that, 
notwithstanding  the  fact  that  they  now  constitute  integral 
parts  of  the  political  machinery  of  the  countries  in  which 
they  have  developed,  they  have  in  no  case  been  deliberately 
created  as  political  institutions.  One  may  read  the  consti- 
tutions of  all  States  without  finding  the  slightest,  or  at  best 
more  than  the  most  incidental,  reference  to  such  bodies.  The 
same  is  true  in  great  part  of  the  statutes.  Political  parties 
in  fact  have  grown  up  outside  of  the  law  and  to  a  very  large 
extent  continue  to  function  at  the  present  time  as  extra- 
legal  institutions.  Even  where  they  have  developed  grave 
defects  in  their  operations  governments  have  hesitated  to 
step  in  and  attempt  their  correction  by  legislation.  When 
one  considers  the  important  part  that  they  now  play  in  the 
actual  conduct  of  governmental  affairs,  this  situation  must 
be  deemed  to  be  one  that  is  little  short  of  remarkable.  The 
importance  of  their  role  is  such  that  it  is  essential  that  all 
students  of  government  should  have  at  least  a  general  idea 
of  the  real  meaning  of  this  phenomenon,  the  principles  upon 


THE  ROLE  OF  POLITICAL  PARTIES         411 

which  political  parties  are  organized  in  different  countries, 
the  true  functions  of  these  bodies  in  governments  of  dif- 
ferent types  and  the  character  of  the  methods  employed  by 
them  in  carrying  on  their  activities. 

Distinction  Between  Political  Parties  Inside  the  Gov- 
ernment and  Outside  the  Government. —  In  entering  upon 
a  study  of  political  parties  a  clear  understanding  should  be 
had  regarding  the  two  senses  in  which  this  term  may  be 
employed.  In  all  nations  where  the  rule  is  not  absolutely 
autocratic  and  dictatorial,  differences  of  opinion  will  exist 
in  respect  to  matters  of  public  policy  and  contests  will  take 
place  between  individuals  to  hold  office  and  to  exercise 
power.  Where  any  scope  is  given  to  such  differences  and 
conflict  of  ambitions,  the  persons  exercising  political  au- 
thority or  influence  will  divide  themselves  into  groups  in 
order  better  to  further  their  ends.  Many  times  this  divis- 
ion into  groups,  though  nominally  based  upon  differences 
of  opinion  regarding  public  policies,  is,  in  reality,  little 
more  than  a  union  of  persons  seeking,  by  this  means,  to  se- 
cure public  office  for  themselves  and  their  friends,  or  to  ex- 
ercise for  selfish  ends  the  controlling  influence  over  the  di- 
rection of  public  affairs.  Unions  of  this  character  have,  in 
the  past,  usually  been  designated  as  political  parties  and  that 
term  is  still  employed  to  describe  such  groupings. 

Political  parties  of  this  character  the  world  has  had  almost 
from  the  beginning  of  organized  government.  Within  re- 
cent years,  that  is,  since  the  opening  of  the  nineteenth  cen- 
tury, there  has,  however,  arisen  a  new  phenomenon,  that  of 
the  division  of  the  general  population  into  vast  groupings 
having  for  their  purpose  to  make  prevail  their  ideas  regard- 
ing the  character  of  the  government  that  the  country  shall 
have,  the  persons  who  shall  hold  the  offices  of  chief  impor- 
tance and  the  general  policies  that  shall  be  pursued  by  those 


412      THE  GOVERNMENT  OF  MODERN  STATES 

so  exercising  authority.  To  these  groupings  the  same 
term,  political  parties,  is  given. 

It  needs  but  a  moment's  reflection  to  perceive  that  these 
two  phenomena,  though  similarly  designated,  are  wholly  dif- 
ferent in  character  and  give  rise  to  wholly  different  con- 
siderations. The  first  represents  a  grouping  of  persons  in- 
side the  government,  of  those  actually  holding  office  or  ex- 
ercising a  voice  in  the  direction  of  public  affairs ;  the  second 
constitutes  a  grouping  of  persons  outside  the  government, 
of  those  holding  no  office  and  not  participating  in  any  way 
in  the  direct  management  of  public  affairs,  but  yet  seeking 
to  determine  how  and  by  whom  these  affairs  shall  be  con- 
ducted. Under  the  first  phenomenon  we  have  a  union  of 
the  determining  and  the  executing  functions  in  the  same 
hands.  Under  the  second  we  have  a  tendency  to  dissociate 
the  two,  and  to  vest  the  one,  the  determining  function,  in 
the  hands  of  one  organ,  political  parties,  and  the  other,  the 
executing  function,  in  another,  the  government  proper.  In 
the  first  we  have  a  concentration  of  authority  and  responsi- 
bility ;  in  the  second  a  diffusion  of  these  obligations. 

It  needs  but  a  statement  of  this  distinction  to  make  evi- 
dent that  in  the  rise  of  the  second  phenomenon  we  have  to 
deal  with  an  element  which  has  changed  radically  the  whole 
problem  of  government.  It  has  raised  questions  never  be- 
fore presented;  ones,  moreover,  to  which  no  nation  has  as 
yet  found  a  final  answer.  We  have  but  to  study  the  op- 
eration of  political  parties  of  this  latter  description  in  any 
country,  even  in  those  in  which  bodies  of  this  character 
have  firmly  established  themselves  as  integral  parts  of  their 
political  systems,  to  perceive  that  no  final  determination  has 
been  reached  regarding  the  true  place  or  function  of  these 
bodies  in  such  systems,  the  manner  in  which  they  should  be 
organized  and  operated,  the  relation  that  they  should  occupy 


THE  ROLE  OF  POLITICAL  PARTIES          413 


.owards  the  government  proper,  etc.  In  all  but  possibly 
one  or  two  countries  hardly  the  first  beginning  has  been 
made  towards  a  satisfactory  adjustment  of  these  questions. 

In  no  two  countries  have  political  parties  assumed  the 
same  form  or  taken  to  themselves  precisely  the  same  func- 
tions. It  is  our  intention  in  the  pages  that  follow  to  de- 
scribe briefly  the  systems  of  political  parties  in  the  United 
States  and  certain  of  the  leading  countries  of  Europe  as 
the  best  means  of  making  known  the  character  of  the  prob- 
lems to  which  these  organizations  give  rise.  Before  doing 
so  it  is  necessary,  however,  to  point  out  the  two  principles 
upon  which  representation  in  a  Popular  Government  may 
take  place,  since  without  a  knowledge  of  the  difference  be- 
tween the  two  it  is  impossible  to  understand  the  different 
systems  of  political  parties  that  have  been  developed  in  the 
countries  studied. 

Two  Principles  of  Representation:  The  Representa- 
tive and  the  Agency. —  In  applying  the  principle  of  repre- 
sentation to  governments  two  methods  are  open.  The  first 
consists  in  the  people  giving  the  officers  or  organs  having 
the  duty  of  representing  them  what  may  be  termed  a  full 
power  of  attorney  so  to  conduct  the  affairs  of  government  as 
to  them  seems  wise.  It  is  the  principle  of  a  large  body  of 
persons  selecting  their  wise  men  to  act  for  them.  When 
this  is  done  such  officers  and  organs  are  representative  in  the 
truest  sense  of  the  term.  They  are  not  agents  in  the  sense 
that  it  is  their  duty  to  take  orders  from,  or  to  act  as  officers 
to  execute  orders  given  by  the  people.  On  the  contrary, 
bodies  of  this  character  rest  upon  the  principle  that  the  peo- 
ple, as  a  whole,  are  not  competent  to  reach  sound  decisions 
regarding  matters  of  state  policy  and  legislation;  or,  that, 
granting  the  capacity  of  the  people  taken  individually,  it  is 
an  impossibility  for  so  numerous  an  assembly  of  units  to 


4i4      THE  GOVERNMENT  OF  MODERN  STATES 

reach  any  general  or  specific  opinions  that  will  represent 
the  collective  will  of  the  people  and  be  generally  acceptable. 
This  principle  thus  rests  upon  the  basis  that  while  the  peo- 
ple should  have  a  voice  in  the  conduct  of  public  affairs  this 
voice  can  best  and  most  effectively  be  exercised  by  a  small 
body  of  select  and  highly  qualified  specialists  rather  than 
by  the  people  themselves.  It  is  of  the  essence  of  this  princi- 
ple that  such  a  body  of  wise  men  shall  act  upon  their  own 
best  judgment.  While  it  is  their  obligation  to  keep  steadily 
in  mind  the  interests  of  the  people  and  to  seek  to  determine 
what  are  their  wishes,  the  responsibility  for  the  final  de- 
cisions made  is  theirs.  A  body  acting  in  such  a  way  is  a 
representative  assembly  of  a  pure  type. 

A  second  principle  of  representation  is  that  to  which,  for 
want  of  a  better  term,  we  may  give  the  designation 
"  Agency."  The  theory  underlying  this  principle  is  that 
the  popular  assembly  is  but  a  means  for  carrying  out  the  will 
of  the  people.  It  thus  acts  as  an  agent  and  as  an  agent  is 
under  the  obligation  to  carry  out  such  orders  as  it  may 
receive  from  its  principal,  the  sovereign  people.  Under 
this  theory,  the  people  constitute  not  only  the  legal  but 
the  real  seat  of  authority. 

It  is  hardly  necessary  for  us  to  point  out  how  overwhelm- 
ingly important  it  is,  as  affecting  the  character  of  the  political 
system  resulting,  whether  the  one  or  the  other  of  these  two 
principles  of  organizing  and  operating  a  popular  assembly 
is  followed.  In  the  extent  to  which  one  or  the  other  has 
actually  been  followed  we  find  the  main  difference  between 
the  systems  of  political  parties  as  they  exist  at  the  present 
time  in  the  chief  countries  of  the  world  in  which  the  prin- 
ciple of  Popular  Government  prevails. 

The  System  of  Political  Parties  in  England. —  We  have 
already  seen  that  in  England,  no  less  than  in  our  own  conn- 


- 


HE  ROLE  OF  POLITICAL  PARTIES         415 

try,  the  rise  of  political  parties  in  the  modern  sense  is  of 
comparatively  recent  date.  They  may  in  fact  be  said  to  date 
from  the  famous  Reform  Act  of  1832  by  which  Great  Brit- 
ain inaugurated  its  movement  for  the  reform  of  its  then  cor- 
rupt and  illogical  electoral  system.  Under  the  old  system 
many  electoral  districts  had  but  a  small  number  of  voters  and 
these  were,  in  great  part,  under  the  domination  of  a  few 
large  landowners  or  had  their  votes  controlled  through  gov- 
ernment or  other  influences.  Not  until  the  franchise  had 
been  broadened  so  as  to  include  a  considerable  portion  of  the 
adult  male  population  and  guarantees  had  been  afforded  that 
this  franchise  could  be  freely  exercised  was  there  laid  the 
basis  for  political  parties  in  any  modern  sense. 

For  a  long  time  prior  to  this  period  England,  however, 
had  had  Representative  Government  and  what  were  known 
as  political  parties.  These  parties,  however,  were  of  the 
character  which  we  have  described  as  existing  inside  the  gov- 
ernment. This  is  evidenced  by  the  fact  that  the  first  public 
speech  intended  to  influence  the  action  of  voters  was  that  of 
Lord  John  Russell  in  1831.  As  late  as  1886  Gladstone  had 
to  defend  himself  to  the  Queen  for  making  speeches  outside 
of  his  own  constituency.  The  fact  is  that,  not  until  our  own 
generation  did  the  idea  prevail  that  the  people  outside  of  the 
government  should,  by  the  foundation  of  political  parties, 
seek  to  exercise  a  direct  and  positive  influence  upon  the 
conduct  of  government. 

Though  the  fact  is  now  well  established  that  no  Ministry 
can  long  retain  power  unless  it  has  the  support  of  a  majority 
of  the  voters  of  the  nation,  this  feature  that  the  function  of 
the  electorate  is  to  approve  or  disapprove  of  policies  as  for- 
mulated and  put  into  practice  by  the  ministry  in  power,  rather 
than  itself  to  determine  or  originate  political  programs,  still 
constitutes  the  distinguishing  feature  of  the  British  party 


416      THE  GOVERNMENT  OF  MODERN  STATES 

system.  Especially  does  it  mark  off  that  system  from  the 
one  which  prevails  in  the  United  States.  Under  this  system, 
the  government  resulting  is  one  of  public  opinion,  but  this 
opinion  is  exerted  indirectly,  or  rather,  in  an  unformulated 
or  non-mandatory  way.  It  controls  in  the  last  resort  since 
the  members  of  Parliament  and  particularly  the  ministry,  are 
well  aware  that  appeal  for  support  of  their  policies  must  con- 
stantly be  made  to  the  people  as  vacancies  occur  in  individual 
constituencies  and  at  least  once  in  five  years  to  the  whole 
body  of  voters  when  Parliament  is  dissolved.  Though  pub- 
lic policies  and  legislative  programs  are  thus  framed  by 
those  in  power  according  to  their  best  judgment,  this  judg- 
ment is  controlled  by  the  will  of  the  people  as  expressed 
through  the  public  press,  petitions,  meetings,  etc.  The  im- 
portant point,  however,  is  that  the  initiative,  the  actual 
formulation  of  such  program,  is  made  by  those  inside  the 
government  and  that  the  positive  function  of  the  voters  is 
that  of  approving  the  program  so  made  rather  than  of  di- 
recting what  such  program  shall  be. 

Another  feature  of  significance  in  the  English  system  is 
that  the  division  of  opinion  on  the  part  of  the  voters  and  the 
consequent  party  alignment,  takes  place  almost  wholly  in 
respect  to  public  issues.  Only  to  a  minor  degree  is  it  in- 
fluenced by  a  desire  to  put  this  or  that  particular  man  in 
office.  Actually  all  that  the  voters  do  when  casting  their 
ballots  is  to  express  their  wishes  as  to  whether  the  program 
advocated  by  the  ministry  in  power  or  the  one  advocated  by 
the  opposition  in  Parliament  shall  be  followed.  The  in- 
dividuals voted  for  have  declared  their  position  in  respect 
to  these  alternative  programs,  and  it  is  well  understood 
that  they  are  under  the  obligation  to  adhere  to  such  declara- 
tion, even  though  their  individual  judgments  may  at  times 
be  opposed  to  particular  features  of  such  program  or  to  the 


THE  ROLE  OF  POLITICAL  PARTIES          417 

line  of  action  decided  upon  by  their  party  in  respect  to 'such 
new  issues  as  may  arise. 

The  most  significant  consequence  of  this  system  is  that 
political  parties  have  not  made  the  attempt  to  convert  them- 
selves into  organs  of  the  government.  They  do  not  seek 
to  determine  who  shall  hold  this  or  that  particular  office. 
They  make  no  effort  to  control  the  conduct  of  governmental 
affairs  except  in  so  far  as  they  may  influence  it  indirectly 
by  giving  expression  to  their  opinion  through  the  public  press 
and  otherwise.  The  English  have  thus  made  the  funda- 
mental decision  that  their  government,  while  being  a  Popu- 
lar Government,  shall  be  a  Representative  Government  and 
not  a  Democracy,  and  that  the  principle  of  representation 
shall  be  the  "  Representative  "  and  not  the  "  Agency  "  prin- 
ciple, as  these  terms  are  here  used.  The  English  have 
thus  succeeded  in  harmonizing  the  two  delicate  and  often 
opposing  considerations  of  securing  a  government  that  is 
strong,  in  the  sense  that  power  and  responsibility  are  con- 
centrated in  the  hands  of  the  governing  authorities,  and  yet 
one  which,  in  its  operations  conforms,  as  regards  all  impor- 
tant matters,  to  public  opinion. 

If  now  the  question  is  asked  how  England  has  been  able 
to  bring  about  this  fortunate  condition  of  affairs,  we  must 
seek  an  answer  in  a  number  of  contributing  facts.  The  first 
of  these  is  that  England  began  its  career  as  a  Monarchy 
in  which  all  powers  of  government  were  at  the  start  con- 
centrated in  the  hands  of  the  ruler;  and  that,  only  gradu- 
ally, step  by  step,  as  one  class  after  another  became  edu- 
cated and  capable  of  exercising  political  powers  in  a  proper 
manner,  was  the  privilege  conferred  upon  the  people  of 
exercising  a  will  in  the  conduct  of  their  public  affairs.  The 
second  fact  is  that  England  has  at  all  times  decisively  re- 
jected the  principle  of  Democracy.  There  has  never  been 


4i8      THE  GOVERNMENT  OF  MODERN  STATES 

any  considerable  portion  of  the  population  adhering  to  the 
theory  that  it  was  the  function  of  the  people  to  exercise  di- 
rectly political  powers.  No  principle  has  been  more  firmly 
adhered  to,  or  is  at  the  present  time  more  firmly  imbedded 
in  the  British  system,  than  that  the  political  system  of  the 
country  should  be  representative  in  character;  that  the  peo- 
ple should  exercise  their  political  powers  through  represen- 
tatives ;  and  that  it  was  the  function  of  these  representatives 
to  determine  in  the  first  instance  what  should  be  the  policies 
of  the  government,  and  to  exercise  all  the  powers  in  respect 
to  the  putting  into  effect  of  these  policies.  Thirdly,  and  as 
a  condition  without  which  such  a  system  could  not  possibly 
prove  successful,  is  the  development  of  the  principle  that  the 
powers  so  concentrated  in  the  governing  authorities  should 
be  exercised  in  the  interests  of  the  people  and  in  general  con- 
formity with  their  wishes  freely  expressed.  Finally,  and 
equally  imperative,  is  the  establishment  of  the  principle  of 
accountability  on  the  part  of  those  exercising  authority  to 
the  people  in  whose  behalf  such  authority  is  exercised.  This 
is  secured  in  large  part  by  the  obligation  that  is  imposed 
upon  all  government  authorities  of  making  a  full  exposition 
of  the  manner  in  which  they  have  discharged  their  duties. 
Especially  is  this  principle  carried  out  in  respect  to  all  mat- 
ters of  public  finance.  Through  a  system  of  admirable 
reports  full  and  detailed  information  is  currently  submit- 
ted to  the  people  of  all  moneys  received  in  the  way  of 
public  dues  or  otherwise  and  how  this  money  has  been  spent. 
These  data,  together  with  complete  publicity  in  respect  to 
parliamentary  proceedings  and  all  acts  of  executive  officers, 
furnish  that  information  which  the  people  must  have  if  an 
intelligent  public  opinion  is  to  come  into  existence,  and 
the  people  are -to  exert  that  general  supervisory  and  ap- 
proving authority  which  is  properly  theirs  under  a  repre- 


THE  ROLE  OF  POLITICAL  PARTIES         419 

tentative  form  of  government.  Only  so  long  as  the  people 
can  see  that  the  government  is  being  properly  conducted  and 
in  their  interest  will  they  be  content  to  acquiesce  in  the  ac- 
tual exercise  of  powers  being  in  the  hands  of  representa- 
tives and  refrain  from  attempts  to  seize  authority  them- 
selves. 

The  System  of  Political  Parties  in  the  United  States. 
—  In  the  United  States  political  parties  have  taken  quite  a 
different  form  and  have  assumed  quite  a  different  role  from 
what  they  do  in  England.  This  has  aris'en  from  the  fact 
that,  though  the  attempt  was  made  to  establish  a  govern- 
ment of  a  purely  representative  type,  the  pull  towards  De- 
mocracy has  been  too  strong  to  be  resisted.  Denied  any 
direct  participation  in  the  conduct  of  public  affairs,  the  peo- 
ple have  effected  elaborate  party  organizations  outside  of 
the  government  through  which  they  formulate  their  will  re- 
garding who  shall  be  elected  to  office  and  what  shall  be  the 
conduct  in  office  of  the  persons  so  elected.  These  organi- 
zations have  worked  out  elaborate  systems  of  organization 
consisting  of  a  long  chain  of  committees,  extending  from 
the  small  local  committees  in  local  districts,  through  state 
committees  representing  the  parties  in  the  several  states,  to 
the  central  organizations  known  as  national  committees 
representing  the  parties  in  the  country  as  a  whole.  They 
have  their  rules  of  procedure  which  determine  how  the 
memberships  of  these  committees  shall  be  selected,  how  their 
officers  shall  be  chosen,  what  the  powers  of  these  officers 
shall  be,  etc.  These  rules  further  provide  for  the  summon- 
ing of  conventions  for  the  purpose  of  selecting  the  candi- 
dates of  the  party  for  office  in  the  states  and  in  the  national 
government  and  for  the  formulation  of  party  platforms,  as 
instructions  to  their  candidates  if  they  are  elected. 

It  is  not  intended,  by  this  statement,  to  convey  the  im- 


420      THE  GOVERNMENT  OF  MODERN  STATES 

pression  that  officers,  elected  by  the  people,  either  directly 
or  indirectly,  are  deprived  of  all  individual  initiative  and 
discretion  and  are  reduced  to  mere  spokesmen  for  the  pur- 
pose of  putting  into  execution  commands  given  to  them. 
Necessarily  the  platforms  adopted  by  the  parties  are  general 
in  terms  and  do  not  cover  all  questions  that  may  arise. 
Quite  a  wide  field  is  thus  left  in  which  the  delegates  may 
exercise  their  individual  judgments  in  respect  to  the  spe- 
cific steps  to  be  taken  in  carrying  out  the  commands  of  the 
people.  The  impression  that  it  is  intended  to  convey  is  that 
the  principle  of  popular  participation  in  public  affairs  has 
been  changed  from  the  "  representative  "  to  the  "  agency/* 
and  that  the  tendency  is  for  the  representative  bodies  to  be- 
come more  and  more  mere  organs  for  the  registering  of  the 
decrees  and  the  carrying  out  of  action  elsewhere  determined. 

Though  one  may  believe,  as  many  in  the  United  States  do, 
that  this  change  from  the  representative  to  the  agency  idea 
is  to  be  regretted,  there  is  nothing  in  this  change  that,  in  a 
country  with  a  highly  intelligent  electorate,  and  a  long  ex- 
perience in  Popular  Government,  necessarily  means  political 
disaster  or  even  bad  government,  provided  that  certain  con- 
ditions are  met.  These  conditions  are:  that  these  political 
organizations  shall  confine  their  function  to  that  of  determ- 
ining and  expressing  the  public  will  and  of  formulating  pub- 
lic issues  in  such  a  way  that  it  is  possible  for  the  individual 
voter  to  choose  between  alternative  candidates  for  elective 
offices  and  alternative  lines  of  action ;  and  that  the  same,  or 
equal  precautions  shall  be  taken  to  ensure  that  these  or- 
ganizations are  properly  constituted  and  operated  as  are 
thrown  around  the  organization  and  operation  of  the  organs 
of  government  proper. 

Unfortunately,  neither  of  these  conditions  has  been  met 


THE  ROLE  OF  POLITICAL  PARTIES          421 

in  the  United  States.  Not  content  with  determining  pub- 
lic policies  and  who  shall  be  the  persons  to  fill  the  offices 
charged  with  the  responsibility  of  seeing  that  these  policies 
are  actually  adopted,  party  organizations  have  attempted 
to  make,  and  to  a  considerable  extent  have  succeeded  in 
making,  of  themselves  powerful  agencies  in  respect  to  the 
work  of  executing  these  policies.  They  have  thus  sought  to 
assume  the  same  direction  or  order-giving  function  in  re- 
spect to  the  administrative  branch  of  the  government  that 
they  do  in  respect  to  the  legislative,  that  is,  the  policy- 
determining  and  law-enacting  branch.  This  attempt  has 
found  expression  in  the  dictation  to  administrative  officers 
of  what  they  shall  do,  how  their  offices  shall  be  organized, 
what  positions  or  stations  shall  be  established,  who  shall  be 
appointed  to  these  offices,  what  salaries  shall  be  paid,  what 
work  shall  be  undertaken,  with  whom  contracts  shall  be 
made,  what  the  terms  of  these  contracts  shall  be,  etc. 

It  may  unhesitatingly  be  declared  that  this  attempt  on  the 
part  of  political  parties,  or  rather  their  organizations,  to 
enter  the  administrative  field  is  wholly  bad.  It  has  re- 
sulted in  the  introduction  of  what  is  known  as  the  "  spoils 
system  " ;  that  is,  the  system  that  looks  upon  public  offices 
as  the  spoils  of  the  political  contest  to  be  enjoyed  by  the 
victors.  It  is  difficult  to  exaggerate  the  harm  that  has  been 
done  by  the  establishment  of  this  practice.  Fortunately  the 
United  States,  after  a  long  and  bitter  experience,  has  come 
to  a  realization  of  this  fact  and  has  begun  to  take  the  neces- 
sary steps  for  the  correction  of  this  evil.  This  it  has  done 
by  taking  the  only  effective  means  by  which  this  evil  may 
be  eradicated ;  that,  namely,  of  passing  laws  providing  that 
only  those  persons  shall  be  appointed  to  administrative  of- 
fices as  demonstrate  their  fitness  through  the  giving  of  evi- 


422      THE  GOVERNMENT  OF  MODERN  STATES 

dence  of  their  capacity  through  examinations,  or  other 
means,  and  that,  once  appointed,  their  tenure  of  office  shall 
be  permanent  or  dependent  only  on  good  conduct. 

The  second  condition  that  must  be  met,  if  political  parties 
are  to  make  of  themselves  real  organs  of  government,  in  the 
sense  of  determining  and  controlling  the  actual  conduct  of 
governmental  affairs,  without  becoming  an  evil  and  a  dan- 
ger to  Popular  Government,  is  that  the  same  or  equal  pre- 
cautions shall  be  taken  to  insure  that  these  organizations 
are  properly  constituted  and  run  as  are  thrown  around  the 
organization  and  operations  of  the  organs  of  government 
proper.  Here,  too,  the  United  States  has  failed  to  meet 
the  requirements  of  the  situation.  The  fact  that  political 
parties,  as  has  been  pointed  out,  have  not  been  subject  in 
the  past  to  legal  control  has  been  taken  advantage  of  by 
those  making  politics  their  chief  concern  in  such  a  way  as 
to  make  it  possible  for  them  to  get  the  control  of  these 
organizations  into  their  own  hands,  and  thus  to  use  the 
power  and  influence  of  these  bodies  for  the  advancement 
of  their  own  selfish  ends.  This  has  resulted  in  the  establish- 
ment of  what  is  known  as  "  ring  rule  "  or  "  bossism  "  in 
the  United  States.  Under  this  system  a  few  men,  who, 
for  the  most  part,  sought  only  their  own  advantage,  actually 
dictated  who  should  be  the  persons  to  be  nominated  as  con- 
didates  for  elective  offices,  and  what  should  be  party  policies 
as  expressed  in  the  party  platforms.  More  than  this,  tak- 
ing advantage  of  the  spoils  system,  they  have  dictated  to 
executive  and  administrative  officials  who  should  be  ap- 
pointed to  office,  what  stations  or  positions  should  be  es- 
tablished, with  whom  contracts  should  be  made,  etc.  This 
power  they  were  able  to  wield,  partly  in  consequence  of  the 
character  of  the  rules  providing  for  the  organization  and 
operation  of  the  political  machinery,  the  adoption  of  which 


THE  ROLE  OF  POLITICAL  PARTIES         423 

they  had  secured,  partly  by  the  control  of  the  party  funds 
which  was  in  their  hands,  and  partly  by  the  use  of  fraudulent 
practices  of  various  descriptions. 

Fortunately  here,  too,  a  beginning  has  been  made  to 
meet  this  situation  of  affairs.  Within  the  last  ten  or  fif- 
teen years  numerous  laws  have  been  placed  upon  the  statute 
books  of  both  our  national  and  state  governments  having 
for  their  purpose  to  bring  under  control  party  organizations, 
practices  and  procedure.  This  legislation  has  taken  the 
form  of  the  enactment  of  the  corrupt  practices  acts,  of  which 
mention  has  already  been  made,  acts  regulating  the  manner 
in  which  persons  shall  be  nominated  as  candidates  to  be 
voted  for  at  elections,  acts  regulating  the  manner  in  which 
officers  of  political  parties  shall  be  chosen,  etc.  This  action 
is  of  the  highest  significance  since  it  represents  for  the  first 
time  a  recognition  by  law  of  the  existence  of  these  bodies 
as  integral  parts  of  the  political  system  of  the  country  and 
as  such  subject  to  legal  regulation  as  are  other  government 
agencies. 

Comparison  of  the  Party  Systems  in  England  and  the 
United  States. —  Though  we  have  attempted  to  make 
known  the  fundamental  features  of  the  party  systems  in 
England  and  the  United  States,  the  real  significance  of  these 
features  can  only  be  fully  shown  by  bringing  them  into 
contrast.  We  have  in  these  two  systems  the  rather  remark- 
able phenomenon  of  two  countries,  both  populated  by  sub- 
stantially the  same  race,  both  drawing  their  legal  and  social 
institutions  and  ideals  from  the  same  source,  and  both  having 
the  same  fundamental  end  in  view,  that  of  achieving  Popu- 
lar Government,  and  yet  developing  widely  divergent  means 
of  securing  this  end. 

Both,  in  so  far  as  deliberate  planning  is  concerned,  have, 
at  the  start,  had  a  profound  distrust  of  Democracy,  and 


424      THE  GOVERNMENT  OF  MODERN  STATES 

have  sought  to  bring  into  existence  that  type  of  Popular 
Government  known  as  representative.  Here,  however,  the 
similarity  ceases.  In  working  out  this  problem  the  two 
countries  have  developed  two  political  systems  that  rest 
upon  principles  that  are  utterly  opposed  to  each  other. 

England  has  adhered  rigidly  to  the  principle  of  representa- 
tion: the  United  States^  notwithstanding  its  adoption  of  this 
principle,  has,  almost  from  the  start,  departed  from  it  and 
gone  over  to  the  other  principle.  Steadily,  the  latter  country 
has  developed  practices  having  as  their  effect,  first  to  change 
the  principle  of  representation  from  the  representative  to  the 
agency,  and  then,  going  further,  to  convert  its  representa- 
tive form  of  government  to  that  of  a  Democracy  or,  at  least, 
one  in  which  the  democratic  element  finds  a  constantly 
larger  expression.  This  tendency  is  at  the  present  time  es- 
pecially marked.  A  strong  movement  is  now  in  progress 
for  the  introduction  of  the  devices  known  as  "  the  initia- 
tive," the  "  referendum,"  and  the  "  recall,"  all  three  of  which 
represent  means  by  which  the  people  may  exercise  their 
political  powers  directly  instead  of  through  either  represen- 
tatives or  agents. 

The  result  of  this  action  has  been  to  give  to  political 
parties  an  entirely  different  character  and  role  in  the  two 
countries.  In  England  these  bodies  are  but  means  through 
which  the  people  select  their  representatives  and  express 
their  approval  or  disapproval  of  the  policies  adopted  by 
them.  Great  care  has  been  taken  to  prevent  these  bodies 
from  becoming  organs  of  government.  In  the  United 
States,  the  reverse  has  been  the  case.  Political  parties  have 
more  and  more  succeeded  in  making  of  themselves  the  means 
through  which  public  policies  and  legislative  programs  are 
formulated  and  have  thus  converted  themselves  into  true 
organs  of  government.  The  English  system  concentrates  in 


THE  ROLE  OF  POLITICAL  PARTIES          425 

the  same  hands  the  policy-determining  and  the  policy-adopt- 
ing functions.  The  American  system  places  these  two  func- 
tions to  a  large  extent  in  the  hands  of  separate  bodies  com- 
posed for  the  most  part  of  different  individuals.  These  two 
bodies  moreover  have  no  organic  connection  the  one  with 
the  other.  One  is  an  organ  inside,  or  rather  constituting  a 
part  of  the  government  proper;  the  other  an  organ  outside 
of  the  government.  The  latter,  moreover,  composed  as  it 
is  of  persons  holding  no  formal  office  and  coming  together1 
only  at  infrequent  intervals  of  time,  functioning  for  a  few 
days  and  then  scattering,  is  of  a  character  making  it  diffi- 
cult if  not  impossible,  to  make  effective  the  principle  of  ac- 
countability on  its  part  for  its  acts.  In  like  manner,  the 
fact  that  the  organ  constituting  a  part  of  the  government 
proper,  the  legislature,  is  called  upon  to  adopt  policies  and 
measures  in  the  determination  of  which  it  has  not  partici- 
pated means  that  it  cannot  be  held  to  full  responsibility  for 
its  acts.  That  this  condition  of  separation  of  functions  and 
divided  responsibility  constitutes  a  grave  defect  in  the 
American  political  system  would  seem  to  be  self-evident. 

The  Two-Party  System. —  Before  leaving  this  matter 
of  a  comparison  of  the  two  systems  mention  should  be  made 
of  another  feature  which  the  two  systems  possess  in  com- 
mon and  which  more  than  any  one  other  feature  marks  off 
these  systems  from  the  party  systems  as  they  have  developed 
in  other  countries.  Reference  is  made  to  the  prevalence  in 
these  two  countries  of  what  is  known  as  the  Two  Party  sys- 
tem. In  both  England  and  the  United  States  the  tendency 
has  always  been  for  the  people  to  range  themselves  into  but 
two  great  parties  divided  from  each  other  by  general  issues. 
These  issues,  moreover,  have  represented  rather  general  at- 
titudes of  mind  towards  political  policies  than  differences  in 
respect  to  particular  issues.  Political  issues  between  the  two 


426      THE  GOVERNMENT  OF  MODERN  STATES 

parties  there  have  always  been,  but  these  issues  have,  for  the 
most  part,  been  but  the  expression  in  the  concrete  of  the 
general  line  of  cleavage. 

This  feature  of  the  political  life  of  the  two  countries  is 
not  only  characteristic  of  their  political  systems,  but  is  be- 
lieved by  many  to  be  essential  to  their  successful  operation. 
Certain  it  is  that  whenever  a  third  or  additional  party  has 
arisen  to  any  degree  of  influence  and  power  grave  difficul- 
ties have  immediately  presented  themselves.  That  the  Eng- 
lish system  has  worked  with  great  friction  since  the  rise  of 
the  Nationalist,  or  Irish  Home-Rule,  and  the  Labor  parties, 
there  can  be  no  question.  The  existence  of  more  than  two 
great  parties  means  that  no  one  party  will  represent  the 
majority  opinion  of  the  country  and  that  government  can 
only  be  carried  on  through  two  or  more  parties  forming 
coalitions  of  a  more  or  less  temporary  and  artificial  charac- 
ter At  the  best  it  represents  a  confusion  of  issues  and  a 
failure  to  secure  that  definite  responsibility  that  is  afforded 
by  the  two  party  system.  It  must  be  noted,  moreover,  that 
with  the  increasing  scope  of  governmental  activities,  and  the 
consequent  multiplication  of  possible  issues,  there  is  a  strong 
tendency  for  third  parties  to  arise  and  constitute  a  per- 
manent feature  of  the  party  system.  Should  this  tendency 
prevail  the  system  of  political  parties  in  England  and  the 
United  States  will  undergo  a  profound  modification.  It 
is  for  this  reason,  among  others,  that  we  have  stated  that  no 
country  has  as  yet  reached  any  final  determination  in  respect 
to  the  character  of  political  parties  that  it  will  have  and  the 
true  role  that  they  will  play  in  the  political  life  of  the 
nation. 

Collective  versus  Individual  Responsibility. —  Another 
feature  characteristic  of  both  the  English  and  American 


THE  ROLE  OF  POLITICAL  PARTIES         427 

systems  of  political  parties  and  one  which  is  of  far-reaching 
importance  is  that  in  both  these  countries  the  idea  of  col- 
lective responsibility  as  distinguished  from  the  individual 
responsibility  of  members  elected  to  office  has  reached  a 
high  degree  of  development.  By  this  is  meant  that  indi- 
viduals are  voted  for  as  representatives  of  their  parties  and 
of  the  policies  for  which  such  parties  stand  rather  than  on 
account  of  their  individual  opinions  or  merits.  The  result 
is  that  political  policies  are  given  preeminence  over  individual 
considerations.  Political  contests  thus  become  contests  be- 
tween policies  rather  than  men.  The  character  of  the  latter 
are  considered  chiefly  as  it  is  believed  they  will  prove  the 
best  agents  for  carrying  out  such  policies.  In  England  this 
principle  is  so  firmly  established  that  it  is  practically  obliga- 
tory upon  the  individual  members  of  the  House  of  Commons 
to  support  the  party  program  regardless  of  their  personal 
opinions.  They  in  effect  receive  an  imperative  mandate 
from  those  putting  them  in  office  to  pursue  this  course.  In 
the  United  States  this  movement  towards  collective  or  party 
responsibility  has  not  as  yet  gone  as  far  as  this.  What 
is  known  as  independent  voting  still  takes  place  to  a  con- 
siderable extent.  The  whole  trend,  however,  is  towards 
collective  responsibility. 

At  first  sight  it  might  seem  that  a  system  under  which 
representatives  are  compelled  in  many  cases  to  vote  against 
their  convictions  is  difficult  to  defend.  Examination,  how- 
ever, will  show  otherwise.  Only  as  it  obtains  can  clear-cut 
issues  be  brought  before  the  people  for  determination  and 
the  decisions  arrived  at  put  into  execution.  If  action  is  to 
depend  upon  a  warring  of  hundreds  of  different  wills  it  is 
difficult,  if  not  impossible,  to  secure  action  that  represents 
the  real  will  of  the  people.  One  has  but  to  compare  the 


428      THE  GOVERNMENT  OF  MODERN  STATES 

results  under  the  system  of  collective  responsibility  with 
those  secured  under  the  contrary  system  to  be  convinced 
of  the  superiority  of  the  former. 

The  System  of  Political  Parties  in  France  and  Other 
Latin  Countries  of  Europe. —  In  our  study  of  the  party 
systems  in  England  and  the  United  States,  we  have  had  the 
opportunity  of  examining  and  comparing  two  very  distinct 
types  of  party  organizations.  We  now  pass  to  a  considera- 
tion of  the  character  of,  and  the  role  played  by  these  bodies 
in  France  and  other  Latin  countries  in  Europe.  Here  we 
will  find  a  condition  of  affairs  quite  dissimilar  from  that 
existing  in  either  of  the  countries  we  have  been  considering. 

The  most  marked  features  of  this  dissimilarity  consist 
in  the  failure  of  any  one  of  these  countries  to  develop  a  party 
system  having  those  features  which  we  have  just  shown  are 
common  to  both  the  American  and  English  systems.  In 
France,  and  the  same  is  true  in  other  Latin  countries  in 
Europe,  political  parties  and  political  organizations  as  un- 
derstood in  England  and  the  United  States  scarcely  exist. 
Political  parties  there  are  groupings  inside  rather  than  out- 
side the  government  proper.  If  we  make  exception  of  the 
Socialist  Party,  there  is  no  party  organization  as  in  Eng- 
land and  the  United  States,  having  a  formal  organization 
outside  the  government  proper.  Each  candidate  practically 
puts  himself  in  nomination  and  makes  his  own  platform. 
It  is  sometimes  said  that  there  are  as  many  political  plat- 
forms in  France  as  there  are  candidates  for  seats  in  the 
Chamber  of  Deputies.  Far  greater  weight  is  thus  given 
to  the  individual  characteristics  of  the  candidates  than  is  the 
case  in  either  England  or  the  United  States.  Indeed  in 
many  cases,  a  party  consists  of  little  more  than  a  political 
leader  and  the  following  that  he  can  attach  to  himself. 

The  result  of  this  condition  of  affairs  is  that  a  condition 


THE  ROLE  OF  POLITICAL  PARTIES          429 

)f  collective  party  responsibility  does  not  exist  as  is  the 
case  in  England  and  the  United  States.     The  majority  of 
votes  in  the  Chamber  of  Deputies  required  for  the  proper 
conduct  of  governmental  affairs  is  only  secured  through  the 
[effecting   of   combinations   and   coalitions   between   small 
parties  or  groups  led  by  political  leaders.     This  support  is 
jo  f  ten  only  secured  through  the  meeting  of  the  demands  of 
=these  leaders  for  the  adoption  of  particular  pet  measures, 
he  expending  of  money  in  the  districts  represented  by  these 
eaders,  or  the  appointment  of  such  leaders  or  their  follow- 
ers to  office.     There  is  thus  a  strong  tendency  for  parlia- 
nentary  life  to  degenerate  into  a  constant  struggle  on  the 
>art  of  individuals  for  place  and  influence.     In  its  worst 
>hase  it  also  brings  about  a  strong  tendency  for  the  "  Gov- 
ernment," that  is,  the  particular  combination  of  parties  or 
groups  in  power,  to  make  an  illegitimate  use  of  its  powers  to 
,vin  the  support  needed  by  it  to  retain  its  control.     At  the 
ist  this  system  gives  to  the  conduct  of  governmental  af- 
:airs  an  instability  and  a  lack  of  that  definiteness  of  purpose 
id  policy  that  characterizes  the  two-party  system  as  it  pre- 
ails  in  the  two  English  speaking  countries. 

Why  France  and  the  other  Latin  countries  of  Europe  have 
hus  failed  to  develop  a  party  system  under  which  the  peo- 
ile  can  express  their  wishes  regarding  political  policies  in 
(definite  form  is  a  question  which  it  is  difficult  to  answer. 
[The  explanation  usually  offiered  is  the  peculiar  temperament 
f  the  Latin  race  which  does  not  permit  of  the  compromises 
land  adjustments  necessary  in  order  that  individual  wills 
may  be  merged  in  a  general  will.     Though  there  may  be 
some  truth  in  this  position,  it  does  not  seem  necessary  to  ap- 
peal to  the  psychological  factor.     A  sufficient  explanation 
may  be  found  in  the  briefness  of  the  experience  of  these 
countries  with  a  form  of  government  calling  for  the  playing 


430      THE  GOVERNMENT  OF  MODERN  STATES 

of  a  prominent  part  by  political  organizations.  We  have 
seen  that  in  both  England  and  the  United  States  political 
parties  have  been  a  spontaneous  and  unplanned  development 
and  that  they  have  assumed  a  definite  character  only  after 
an  evolution  of  many  years.  It  would  be  a  matter  of  sur- 
prise did  the  Latin  countries,  having  had  but  little  experience 
with  self-government,  succeed  in  working  out  their  prob- 
lems of  party  organization  in  a  shorter  time. 

The  System  of  Political  Parties  in  Germany. —  Up  to 
the  present  time  we  have  been  considering  the  place  and 
functions  of  political  parties  in  countries  whose  legal  basis, 
and  whose  avowed  political  ideal  is  that  of  achieving  Popu- 
lar Government.  If  we  turn  now  to  countries  whose  con- 
stitutional systems  do  not  rest  upon  this  basis,  but  upon  that 
of  the  head  of  the  State  being  the  original  source  of  all  polit- 
ical authority,  we  have  evidently  to  deal  with  a  different 
condition  of  affairs.  Of  such  countries  the  chief  example 
in  Europe  is  the  German  Empire. 

It  would  take  us  too  far  from  our  subject  to  attempt  here 
to  describe  in  detail  the  governmental  system  of  that  country. 
We  will  therefore  have  to  content  ourselves  with  the  follow- 
ing brief  statement  of  its  more  essential  features.  In  Prus- 
sia, and  in  most  if  not  all  of  the  states  constituting  the 
present  German  Empire,  the  principle  is  firmly  held  that  the 
King  or  other  ruler  is  the  fountain  of  all  political  authority. 
As  a  matter  of  political  expediency,  the  ruler  has  in  most 
if  not  all  cases  provided  for  the  establishment  of  a  Parlia- 
ment one  of  whose  houses  is  composed  in  whole,  or  in  part, 
of  persons  selected  by  the  people,  and  having  the  function 
of  representing  the  latter.  These  bodies,  though  occupying 
the  same  place  in  the  governmental  system  are,  however, 
quite  dissimilar  from  the  legislative  assemblies  existing  un- 
der a  Popular  Government.  Not  only  are  they  legally 


THE  ROLE  OF  POLITICAL  PARTIES          431 

agents  of  the  ruler  rather  than  of  the  people,  but  their  powers 
in  respect  to  the  determining  or  controlling  of  public  policies 
and  in  enacting  legislation  are  far  from  those  of  legislative 
chambers  under  a x  Popular  Government. 

The  first  important  limitation  on  their  powers  arises  from 
the  fact  that  in  most,  if  not  all,  cases  the  body  elected  by 
the  people  forms  but  one  of  two  chambers  which  together 
constitute  the  legislative  assembly.  The  other  is  composed 
of  persons  holding  office  as  the  result  of  birth,  official  rank, 
appointment  by  the  ruler,  or  some  qualification  other  than 
that  of  selection  by  the  people.  The  second  limitation 
arises  from  the  fact  that  these  two  chambers  are  rarely  if 
ever  coordinate  in  powers.  In  Prussia  certainly,  and  in 
probably  most  of  the  other  German  states,  the  upper  house 
is  the  senior  partner  and  possesses  far  greater  powers  than 
the  popular  chamber.  Finally  the  scope  of  the  powers  con- 
ferred upon  the  two  chambers  together  is  usually  much  less 
than  that  possessed  by  legislative  assemblies  in  a  Popular 
Government. 

This  policy  in  respect  to  the  character  and  powers  of  the 
legislative  assembly  has  been  likewise  adopted  in  the  con- 
stitution of  the  German  Empire.  Its  legislative  assembly 
consists  of  two  houses  of  which  the  upper  house,  the  Bun- 
desrat,  is  composed  of  persons  owing  their  selection  to  the 
rulers  of  the  several  states  and  acting  as  their  direct  repre- 
sentatives, and  is  the  real  legislative  organ  of  the  govern- 
ment. The  lower  house,  the  Reichstag,  is  composed  of 
members  elected  by  the  people,  but  has  little  more  than  the 
power  to  pass  upon  the  proposals  of  the  government  which 
originate  in,  and  must  in  all  cases  receive  the  final  approval 
of  the  upper  house.  How  relatively  weak  are  the  powers 
of  this  lower  house  is  strikingly  shown  by  the  fact  that  its 
approval  is  not  even  essential  to  the  passing  of  the  budget 


432      THE  GOVERNMENT  OF  MODERN  STATES 

providing  for  the  expenditure  of  public  funds.  Prussia 
early  established  the  doctrine  that  should  the  legislature  fail 
to  pass  the  budget,  the  King  could  promulgate  a  budget 
without  such  approval.  This  doctrine  would  undoubtedly 
be  followed  by  the  Empire  should  occasion  require. 

It  follows  from  the  foregoing  that  the  popular  chamber 
is  relegated  to  the  position  of  a  body  having  negative  rather 
than  positive  powers.  Its  cooperation  with  the  ruler  and  the 
upper  house  will  facilitate  greatly  the  smooth  conduct  of 
public  affairs,  and  for  that  reason  attempts  are  made  to 
meet  its  wishes  in  so  far  as  this  can  be  done  without  seriously 
interfering  with  the  carrying  out  of  policies  deemed  to  be 
essential  by  the  real  rulers,  the  Emperor  and  the  representa- 
tives of  the  heads  of  the  German  states.  This  cooperation, 
however,  is  not  absolutely  essential  and  consequently  the 
government  resulting  is  autocratic  both  in  theory  and 
largely  in  practice. 

It  is  manifest  that  under  a  system  such  as  this  political 
parties  will  have  quite  a  different  character  and  play  quite 
a  different  role  than  they  do  under  a  Popular  Government. 
All  that  such  bodies  can  do  is  to  furnish  the  means  of  making 
known  the  wishes  of  the  public :  they  cannot  formulate  pro- 
grams the  provisions  of  which  are  to  be  carried  out  by  their 
agents.  Even  this  function  they  can  perform  only  imper- 
fectly due  to  the  fact  that  the  electoral  laws  are  of  such  a 
character  as  to  throw  the  voting  power  largely  in  the  hands 
of  the  upper  classes,  that  is,  those  who  by  their  interests  are 
closely  attached  to  the  governing  or  official  class.  Political 
parties  are  thus  neither  an  organ  of  government,  as  in  the 
United  States,  nor  the  final  seat  of  power  as  in  England  and 
France. 

Apart  from  these  considerations  the  character  and  role 
of  political  parties  in  Germany  have  been  influenced,  if  not 


THE  ROLE  OF  POLITICAL  PARTIES         433 

determined,  by  two  other  facts.  The  first  of  these  is  that 
Germany  does  not  have  a  homogeneous  population  actuated 
by  the  same  political  interests  such  as  exists  in  the  other 
countries  whose  party  systems  we  have  been  considering. 
Included  within  the  boundaries  of  the  German  Empire  are 
a  considerable  body  of  Poles,  Danes,  and  Alsatians  who  re- 
sent bitterly  domination  by  the  Teutonic  element.  These 
races  have  had  sufficient  power  to  send  to  the  Reichstag 
members  whose  dominating  aim  is  to  protect  the  interests 
of  their  people  as  Poles,  Danes,  or  Alsatians.  They  consti- 
tute a  group  of  so-called  irreconcilables.  They  thus  do  not 
represent  political  parties  in  the  sense  in  which  that  term  is 
applied  to  a  grouping  of  voters  according  to  differences  of 
opinion  regarding  matters  of  general  policy.  Added  to  this 
cleavage  according  to  race  lines  is  the  antagonism  existing 
between  the  Catholic  and  the  Protestant  elements  of  the 
population,  an  antagonism  which  has  led  to  the  formation 
of  separate  political  parties  along  religious  lines. 

The  second,  and  equally  important  feature  of  the  party 
system  in  Germany  is  the  fact  that  there  exists  in  that  country 
a  not  inconsiderable  portion  of  the  population  which  is  op- 
posed, not  merely  to  the  policies  being  pursued  by  the  gov- 
ernment but  to  that  government  itself.  These  people  have 
constituted  themselves  into  a  party  known  as  the  Social- 
Democratic  party,  whose  fundamental  aim  is  to  change  the 
form  of  government.  We  have  here  an  explanation  why 
the  Kaiser  and  his  Chancellor  have  from  the  start  shown 
such  a  violent  opposition  to  this  party,  an  opposition  which 
for  years  took  the  form  of  prohibiting  by  law  their  meetings 
or  the  publication  of  their  party  papers.  During  this  period 
this  party  was  treated  as  a  seditious  movement,  and  the 
policy  of  attempting  to  put  it  down  through  the  enforcement 
of  penal  provisions  against  it  was  only  abandoned  because 


434      THE  GOVERNMENT  OF  MODERN  STATES 

such  action  failed  to  accomplish  its  purpose.  Though  this 
party  now  constitutes  the  largest  single  party  in  the  country 
it  is  still  viewed  by  the  government  as  a  danger  to  the  State 
and  one  to  be  combated  in  every  way  possible. 

These  several  facts,  that  the  government  is  one  resting 
upon  the  principle  of  sovereignty  being  vested  in  the  ruler 
instead  of  in  the  people;  that  the  legislative  branch  is  so 
organized  as  to  give  only  a  negative  voice  and  that  only  a 
partial  one,  to  the  people;  that  the  people  are  not  homo- 
geneous as  regards  their  national  character  and  aims;  that 
special  class  interests  are  given  precedence  over  those  of  the 
country  as  a  whole ;  and  that  a  large  part  of  the  population 
is  opposed  to  the  existing  political  system  of  the  country 
makes  impossible  the  existence  of  a  party  system  such  as  is 
found  in  the  other  countries  we  have  been  considering. 

The  System  of  Political  Parties  in  Switzerland.—  In 
our  examination  of  the  party  systems  of  England,  the  United 
States,  France  and  Germany  we  have  studied  the  role  of 
political  parties  in  countries  having  a  Representative  or 
Autocratic  form  of  government.  In  Switzerland  we  have 
an  opportunity  to  study  the  part  played  by  such  organizations 
in  a  country  whose  government  approaches  the  type  of  a 
Democracy. 

The  distinguishing  characteristic  of  the  political  system 
of  Switzerland  is  that  the  people  have  elected  to  retain  in 
their  own  hands,  and  to  exercise  directly,  as  large  a  part 
of  their  political  powers  as  circumstances  will  permit.  In 
certain  of  the  smaller  cantons,  the  voting  population  meets 
en  masse  to  enact  legislation.  In  others,  where  this  is  not 
feasible,  they  make  use  of  devices  known  as  the  "  initiative  " 
and  the  "  referendum."  The  initiative  permits  a  certain 
number  of  voters  to  bring  forward  a  legislative  proposition 
to  be  submitted  to  the  voters,  and  if  the  vote  on  it  is  favor- 


THE  ROLE  OF  POLITICAL  PARTIES          435 

able  it  becomes  a  law.  The  referendum  permits  a  certain 
number  of  voters  to  demand  that  a  measure  passed  by  the 
legislature  shall  be  submitted  to  the  voters  to  determine 
whether  it  shall  be  approved  or  disapproved,  and  if  dis- 
approved the  measure  becomes  a  nullity.  Were  it  feasible  to 
handle  all  affairs  in  this  manner,  there  would  be  no  necessity 
for  a  legislative  assembly.  As  this  is  not  feasible,  provision 
is  made  in  most  of  the  cantons,  and  in  the  federal  govern- 
ment, for  such  a  body  to  which  is  intrusted  the  decision  of  all 
legislative  matters  not  directly  decided  by  the  people.  The 
power  of  the  people  to  legislate  directly  is  thus  in  the  nature 
of  a  reserved  power  to  be  brought  into  play  only  in  respect 
to  important  matters  where  there  is  doubt  whether  the  legis- 
lative assembly  is  fully  carrying  out  the  wishes  of  the  people. 

Another  distinguishing  feature  of  the  Swiss  system  is  that 
the  legislative  assembly  is  made  the  organ  for  exercising  on 
behalf  of  the  people  both  legislative  and  administrative 
powers.  The  latter  powers  are  exercised  by  the  assembly 
through  a  permanent  corps  of  administrative  officials  se- 
lected by  it,  who  discharge  their  duties  under  its  general 
direction.  These  officials  are  purely  administrative  officers 
and  political  considerations  play  no  part  in  their  selection 
or  retention  of  office. 

Under  this  system,  where  the  people  are  able  currently  to 
bring  forward  and  have  considered  specific  measures,  and 
where  the  legislative  assembly  can  be  made  to  respond  im- 
mediately to  the  will  of  the  people,  there  is  no  necessity  for 
the  formation  of  political  parties  such  as  exist  in  Popular 
Governments  of  the  representative  type.  There  is  no  need 
for  the  formulation  of  a  political  program  either  inside  the 
government  as  in  England,  or  outside  the  government  as  in 
the  United  States,  and  the  organization  of  the  voters  in 
parties  so  as  to  insure  a  majority  in  the  legislature  to  put 


436      THE  GOVERNMENT  OF  MODERN  STATES 

this  program  into  execution.  As  measures  can  be  brought 
forward  one  by  one  for  consideration,  the  voters  divide  dif- 
ferently at  different  times  according  as  they  favor  or  dis- 
approve of  the  particular  measure  under  consideration. 

The  result  is  that,  though  groupings  of  voters  exist  in 
order  to  promote  certain  policies,  there  are  no  political 
parties  contending  for  power  such  as  constitute  the  principal 
feature  of  the  political  life  in  other  countries.  The  fact  is 
that  Switzerland  has  a  form  of  government  which  may  al- 
most be  designated  as  non-political.  More  nearly  than  in 
any  other  country  the  work  of  government  is  treated  as  a 
matter  purely  of  business  and  to  be  handled  as  are  the  affairs 
of  any  large  business  concern.  In  one  sense  the  Swiss  sys- 
tem represents  the  ideal  form  of  government.  It  would  be 
extremely  interesting  to  enter  into  a  consideration  of  the  rea- 
sons for  this  great  success  on  the  part  of  Switzerland  in 
working  out  its  political  problem,  did  space  permit.  This 
brief  notice  has  been  made  merely  for  the  purpose  of  mak- 
ing clear  that  the  problem  of  political  parties  in  a  Democracy, 
or  in  a  government  in  which  the  democratic  element  finds  so 
large  expression,  is  fundamentally  different  from  the  prob- 
lem as  it  presents  itself  in  an  autocracy  or  in  a  purely  Repre- 
sentative Government. 

The  Role  of  Political  Parties  in  the  Establishment  of 
Governments. —  Consideration  of  this  subject  of  the  place 
of  political  parties  in  governmental  systems  should  not  be 
concluded  without  some  mention  of  the  peculiar  problem 
that  is  presented  in  respect  to  the  function  of  such  organ- 
izations where  the  issues  at  stake  are,  not  what  policies  shall 
be  pursued  by  governments,  but  what  form  such  govern- 
ments shall  have.  At  the  present  time  the  great  political 
issue  confronting  a  number  of  countries  of  which  Russia 


THE  ROLE  OF  POLITICAL  PARTIES          437 

and  China  are  leading  examples,  is  the  form  of  government 
that  they  should  have. 

It  is  evident  that  there  is  a  fundamental  difference  be- 
tween the  people  organizing  themselves  in  opposing  parties 
with  a  view  to  having  the  government,  the  existence  of  which 
is  accepted  by  all,  pursue  this  or  that  line  of  conduct  and 
their  effecting  organizations  having  for  their  purpose  the 
maintenance  or  overthrow  of  that  government.  In  the  first 
case  we  have  a  common  loyalty  to  the  government  actuating 
all  parties.  In  the  second  we  have  at  least  one  party  seek- 
ing to  oppose,  not  merely  the  policy  of  the  government  which 
is  in  control,  but  that  government  itself.  It  is  inevitable 
that  under  such  circumstances,  such  a  party  will  have  a 
disloyal  if  not  an  actually  seditious  character.  At  best  it 
will  seek  to  embarrass  the  existing  government  in  the  effort 
to  establish  a  stable  and  efficient  political  system.  At  the 
worst  it  will  be  a  revolutionary  movement  seeking  to  sub- 
vert the  existing  government,  if  necessary,  by  force. 

We  have  here  a  fundamental  distinction  upon  which  it  is 
impossible  to  lay  too  great  force.  As  President  Lowell  in 
his  notable  work  on  the  Government  of  England  very 
acutely  says : 1 

In  countries  where  popular  control  of  public  affairs  has  endured 
long  enough  to  be  firmly  established,  an  opposition  is  not  regarded 
as  in  its  nature  unpatriotic.  ...  In  the  newer  Democracies,  such 
as  France  and  Italy,  there  are  large  bodies  of  men  whose  aims  are 
revolutionary,  whose  object  is  to  change  the  existing  form  of  gov- 
ernment, although  not  necessarily  by  violent  means.  These  men 
are  termed  "  irreconcilables  "  and  so  long  as  they  maintain  that  at- 
titude, quiet  political  life  with  a  peaceful  alternation  of  parties  in 
power  is  an  impossibility.  ...  If  the  opposition  is  not  to  be  re- 
garded as  revolutionary,  its  object  must  not  be  of  that  character, 
either  in  the  eyes  of  its  own  adherents,  or  in  those  of  other  people. 

1  A.  L.  Lowell :  "  The  Government  of  England,"  Vol.  I,  pp.  437-438. 


438      THE  GOVERNMENT  OF  MODERN  STATES 

If  this  is  true  of  the  countries  mentioned  by  President 
Lowell,  and  it  is  of  course  true  only  in  a  limited  sense,  how 
much  more  is  it  true  of  countries  such  as  Russia  and  China 
which  have  not  yet  reached  a  stage  of  political  equilibrium. 

History  furnishes  abundant  illustrations  of  the  desirabil- 
ity of  avoiding  the  attempt  to  frame  a  constitutional  system 
through  the  play  of  party  contests  and  of  having  political 
powers  strongly  centralized  during  the  formative  period. 
When  Rome  entered  upon  the  preparation  of  her  famous 
Twelve  Tables  all  political  powers  were  for  the  time  being 
vested  in  the  Decemvirs.  The  United  States  in  framing  its 
constitution  entrusted  this  task  to  a  convention  which  sat  be- 
hind closed  doors  with  the  deliberate  purpose  of  preventing 
this  important  act  from  becoming  the  subject  of  factional 
discussion  and  contests.  While  the  governmental  systems 
of  the  insular  possessions  of  the  United  States,  Porto  Rico 
and  the  Philippines,  were  being  framed,  all  powers  were  con- 
centrated in  the  hands  of  the  Military  Governor.  No  one 
who  has  had  any  experience  with  the  conduct  of  public 
affairs  in  those  possessions  can  doubt  but  that  the  establish- 
ment of  this  military  dictatorship  during  this  formative 
period  was  not  only  necessary  from  the  standpoint  of  main- 
taining order,  but  from  that  of  permitting  the  work  of  fram- 
ing a  scheme  of  civil  government  to  proceed  deliberately 
and  calmly  with  reference  to  the  interests  of  the  whole  coun- 
try uninfluenced  by  the  pressure  of  party  contentions. 
Neither  can  any  one  doubt  that  the  maintenance  of  this  mili- 
tary regime  at  that  time  greatly  expedited  the  final  establish- 
ment of  a  civil  government  under  which  provision  was  made 
for  large  powers  of  popular  participation  in  the  conduct  of 
public  affairs. 


INDEX 


INDEX 


Absolutism,  prime  characteristic 
of,  13;  principle  of,  43. 

Accounts  and  reports,  in  govern- 
ments, 390;  importance  of  a 
proper  system  of,  406. 

Adams,  John  Quincy,  on  the  ac- 
tion of  the  Pilgrims  constitut- 
ing themselves  a  body  politic, 
10. 

Administration,  a  distinct  branch 
of  government,  231-233;  func- 
tion of,  defined,  232;  lack  of 
provision  for  the  separate  exer- 
cise of  in  the  United  States,  250. 

Administrative  branch,  relation  of 
chief  executive  to,  351;  func- 
tions of,  385;  distinguished 
from  the  executive  branch,  385, 
386;  non-political  character  of, 
385-386;  organization  of,  390- 
391 ;  need  for  reorganization  of, 
in  the  United  States,  393;  need 
for  creation  of  central  service 
to  control,  393 ;  problems  of  per- 
sonnel in,  396-404;  problems  of 
material  in,  404-406;  problems 
of  business  practice  and  pro- 
cedure in,  406-407. 

Administrative  districts  versus  po- 
litical subdivisions,  184-186. 

Althusius,  Johannes,  49. 

Amendments,  constitutional,  dis- 
tinction between  initiation,  adop- 
tion and  ratification  of,  134;  in- 
itiation of,  134,  methods  of  pro- 
cedure in,  134 ;  adoption  of,  135 ; 
ratification  of,  135-137,  in  rep- 
resentative government,  136,  in 
Japan  and  Germany,  141 ;  pro- 


posal and  ratification  of  in  the 

United  States,  214. 
American    colonies,    doctrine    of 

popular  sovereignty  in,  50. 
American    Constitutional   System, 

by  W.  W.  Willoughby,  cited,  5, 

8,  14,   15,  21,  22. 

American  Judicature  Society,  es- 
tablishment of,  372. 

American  State  Legislatures,  by 
Paul  Reinsch,  136. 

Anarchistic  school  of  political 
thought,  beliefs  of  adherents  of, 
170. 

Annual  Conferences  of  Governors 
of  the  States,  221. 

Annals  and  Memoirs  of  the  Court 
of  Peking,  by  Bland  and  Back- 
house, 74. 

Argentina,  establishment  of  mul- 
tiple government  in,  203. 

Articles  of  Confederation,  did  not 
provide  for  constitutional  con- 
vention, 105. 

Assembly,'  right  of,  161. 

Aucoc,  Conference  sur  L'adminis- 
tration,  cited,  232. 

Australia,  an  example  of  multiple 
government,  211;  territorial  dis- 
tribution of  powers  in,  211. 

Australian  ballot  system,  286. 

Austria,  constitution  of,  granted 
by  ruler,  97. 

Austria-Hungary,  desire  of  peo- 
ples of,  for  independence,  10. 

Autocracy,  described,  37;  repre- 
sented by  Japan,  Russia  and 
Prussia,  39,  40;  modern  type  of, 
43J  existing  types  of,  44;  merits 


441 


442 


INDEX 


of,  53;  unity  of  will  in,  54;  its 
advantages  over  popular  gov- 
ernment, 55-59 ;  concentration 
of  administrative  authority  in, 
56;  defects  and  dangers  of,  59; 
bureaucracy  in,  60;  militarism 
in,  62;  menace  of,  to  other 
states,  64;  political  parties  in, 
65,  430;  absolute  versus  limited, 
42-46,  73-75;  revision  and 
amendment  of  constitutions  in, 
140-142. 


Belgium,  popular  sovereignty  de- 
clared in  constitution  of,  51  > 
constitution  of  not  granted  by 
ruler,  97. 

Bland  and  Backhouse,  Annals  and 
Memoirs  of  the  Court  of  Pe- 
king, 74;  China  under  the  Em- 
press Dowager,  74. 

Bill  of  Rights,  in  England,  not  su- 
perior to  ordinary  law,  78. 

Bodin,  Jean,  49. 

Body  Politic,  definition  of,  6 ;  con- 
stituted by  Pilgrims  in  1620,  9. 

Brazil,  establishment  of  multiple 
government  in,  203. 

Brown,  Rome  G.,  Address  on  Re- 
call of  Judges  before  the  Min- 

t  nesota  State  Bar  Association, 
cited,  380. 

Bryce,  James,  Studies  in  History 
and  Jurisprudence,  cited,  42. 

Budget,  attitude  of  Parliament  of 
Great  Britain  towards,  238; 
preparation  and  enactment  of, 
in  Great  Britain,  259,  in  the 
United  States,  260. 

Bundesrath,  German,  originator  of 
legislative  measures,  296. 

Bureaucracy,  in  an  autocracy,  62- 
63 ;  two  meanings  of  term,  397- 
398;  Prussian,  398-399- 

Burgess,  Political  Science  and 
Constitutional  Law,  cited,  15. 


Cabinet,  President's,  development 
of,  145- 

Calhoun,  speeches  on  nature  of 
the  Union,  24. 

Cambridge  University,  graduation 
from,  a  requirement  for  first  di- 
vision clerkships,  401. 

Canada,  unique  territorial  distri- 
bution of  powers  in,  211 ;  an  ex- 
ample of  multiple  government, 
21 1 ;  bicameral  legislature,  320. 

Census  Bureau,  division  of  the 
United  States  made  by,  224,  225. 

Central  Government,  dependence 
of  on  state  governments  in  the 
United  States,  215;  relation  to 
the  state  government,  214-221 ; 
should  be  superior  to  states,  215. 

Chief  Executive,  qualifications  of, 
340-341;  selection  of,  34!-343; 
hereditary  versus  elective  sys- 
tems, 342;  election  of,  by  popu- 
lar vote,  343-344,  by  the  legis- 
lature, 344,  by  a  specially  consti- 
tuted electoral  college,  345-346; 
succession  to  the  office  of,  346- 

348,  in  the  United  States,  347; 
independence  of,  348-350;  limi- 
tations on,  in  the  United  States, 

349,  as    commander-in-chief   of 
armed  forces,  350;  as  adminis- 
trator-in-chief,     351 ;     relations 
of,  to  the  electorate  and  legis- 
lature, 351,  to  other  branches  of 
government,  350-352. 

China,  referred  to  as  a  state  with 
impaired  sovereignty,  19;  a  sov- 
ereign state,  20;  belief  in  divine 
right  of  kings,  41 ;  popular  sov- 
ereignty declared  in  constitu- 
tion, 51 ;  Revolution  of  1911,  68; 
conditions  in  prior  to  1911,  73; 
republic  of,  established  by  revo- 
lution, 101 ;  revolt  in,  part  of 
widespread  political  movement, 
106;  constitution  of,  depart- 
ments of  government  specified 


INDEX 


443 


in,  112;  ratification  of  constitu- 
tions by  electorate  undesirable 
in,  133 ;  establishment  of  unitary 
government  in,  204;  creation  of 
National  Assembly  in,  297,  rec- 
ommendations respecting,  299 ; 
establishment  of  Presidential 
government  in,  358. 
China  Under  the  Empress  Dow- 
ager, by  Bland  and  Backhouse, 

74- 

Civil  War,  in  the  United  States, 
a  contest  over  nature  of  the 
state,  24. 

Collectivistic  school  of  political 
thought,  174-176. 

Colonies  and  Dependencies, 
growth  of  self-government  in, 
68. 

Commentaries  on  the  Constitution 
of  the  Empire  of  Japan,  by 
Baron  Ito,  cited,  40. 

Committee  on  Foreign  Affairs,  of 
the  Senate,  conference  with  the 
President  on  treaties,  311. 

Common  Law,  of  England,  364. 

Commons,  Proportional  Represen- 
tation, 328  n. 

Communistic  school  of  political 
thought,  principles  of,  177. 

Comparative  Administrative  Law, 
by  Frank  J.  Goodnow,  370  n. 

Confederate  States  of  America, 
their  right  to  be  designated  a 
state,  18. 

Conference  sur  L' administration, 
by  Aucoc,  cited,  232. 

Congress,  of  the  United  States, 
validity  of  acts  of,  determined 
by  Supreme  Court,  120;  desig- 
nates method  of  ratification  of 
constitutional  amendments,  138; 
membership  of,  139;  must  ap- 
prove agreements  between 
states,  221 ;  influence  of  the 
President  on,  244;  participation 
of,  in  executive  power,  248; 


primary  source  of  administra- 
tive power,  252;  lack  of  power 
of  appointment,  256;  attempt  of, 
to  control  improper  practices  in 
elections,  288;  as  a  constitution- 
al convention,  291 ;  functions  of, 
291 ;  as  a  canvassing  board  and 
electoral  college,  293;  as  an  or- 
gan of  public  opinion,  294-301 ; 
as  a  board  of  directors,  301-305, 
388-394;  as  an  organ  of  legisla- 
tion, 305-309;  as  an  executive 
council,  309-312;  as  a  high  court 
of  justice,  312-313;  composition 
of  the  two  houses  of,  316;  its 
powers  of  direction  and  control, 
387. 

Constituent  Assembly,  of  France 
in  1871,  as  provisional  govern- 
ment, 104. 

Constituent  Powers,  defined,  119; 
distinction  from  legislative  pow- 
ers, 120;  complete  surrender  of, 
by  electorate,  121 ;  surrender  of, 
exemplified  by  English  system, 
123;  surrender  of  with  mainte- 
nance of  distinction  between 
constituent  and  legislative  pow- 
ers, exemplified  by  French  sys- 
tem, 126-128;  participation  in, 
by  people,  128. 

Constitution  of  China,  provisional, 
attempt  to  make  certain  fea- 
tures unamendable,  143;  protec- 
tion of  individual  rights  in,  156; 
specifies  administrative  depart- 
ments, 112. 

Constitution  of  France,  cited,  126; 
amendment  procedure,  126;  at- 
tempt to  make  certain  provi- 
sions unamendable,  143. 

Constitution  of  Japan,  cited,  39, 
40. 

Constitution  of  Prussia,  40. 

Constitution  of  Switzerland,  cited, 
156;  protection  of  individual 
rights  in,  156. 


444 


INDEX 


Constitution  of  the  United  States, 
cited,  88;  not  entirely  written, 
94;  adoption  of  possibly  revolu- 
tionary, 105;  does  not  specify 
administrative  departments,  112; 
model  of  proper  drafting,  114; 
amendment  of,  137-140,  re- 
garded as  too  difficult,  118,  part 
of  states  in,  214;  Art.  V,  cited, 
138,  142;  difficulty  of  effecting 
changes  in,  139;  attempt  to 
make  certain  provisions  un- 
amendable,  142;  informal  modi- 
fication of,  144;  property  rights 
in,  159;  procedural  rights  guar- 
anteed by,  163;  conditions  at 
time  of  adoption  of,  197 ;  supe- 
riority of  central  government  in, 
215 ;  extradition  provisions,  Art. 
IV,  Sees.  1-3,  cited,  221 ;  Art.  II, 
Sec.  2,  cited,  251 ;  denial  of  vote 
on  account  of  color,  etc.,  pro- 
hibited, 275;  guarantee  of  re- 
publican form  of  government  to 
states  in,  cited,  282,  invoked  in 
Dorr's  Rebellion,  282;  amend- 
ments authorizing  income  tax, 
popular  election  of  senators,  and 
prohibition,  292,  293;  provisions 
for  impeachment,  312,  313 ;  chief 
executive,  qualifications  of,  341, 
election  of,  345,  succession  to 
office  of,  347. 

Constitutions,  definition  of,  6; 
methods  of  establishment  of,  95, 
by  deliberate  creation,  97-98,  by 
process  of  gradual  evolution, 
98-100,  by  revolution,  100-102; 
formulation  of,  93-106;  written 
and  unwritten,  94;  of  Japan, 
Prussia,  Austria,  granted  by 
rulers,  97 ;  generality  the  pri- 
mary principle  of  drafting,  113; 
modification  of,  107-146 ;  formal 
versus  informal,  118;  flexibility, 
a  requisite  of,  108-118;  stability, 
a  requisite  of,  108-113;  amend- 


ment of,  in,  134;  revision  and 
amendment  of,  128-138,  292,  dis- 
tinction between,  128-129,  in 
autocracies,  140-142;  of  federal 
government,  special  problems 
involved  in  revision  and  amend- 
ment of,  137;  certain  provisions 
of,  declared  unamendable,  142- 
143,  in  China,  France,  and  Unit- 
ed States,  142-143;  dual  func- 
tion of,  149-151. 

Constitutional  Conventions,  con- 
vening of,  130. 

Constitutional  government,  de- 
fined, 77-79;  test  of,  78. 

Constitutional  Government  in  the 
United  States,  by  Woodrow 
Wilson,  cited,  77,  295,  303. 

Constitutional  History  of  Eng- 
land, Maitland,  cited,  307  n,  308. 

Constitutional  Law  of  the  United 
States,  by  W.  W.  Willoughby, 
cited,  251. 

Correlation  of  the  Organisation 
of  Congress  with  that  of  the 
Executive,  by  W.  F.  Willough- 
by, 305  n. 

Council  of  State,  French,  an  ad- 
visory body,  309. 

Courts,  duplicate  system  of,  in  the' 
United  States,  219;  procedure 
of,  as  opposed  to  that  of  ad- 
ministrative bodies,  362 ;  as  bod- 
ies to  determine  or  construe 
law,  364-367;  as  bodies  to  pre- 
vent infractions  of  law  and 
violation  of  rights,  367-368;  as 
bodies  to  administer  property, 
368-369;  systems  of,  in  France, 
Germany,  England  and  the 
United  States,  369;  non-con- 
tentious functions  of,  369;  ad- 
ministrative, in  Europe,  369- 
370,  in  the  United  States,  370; 
organization  of  system  of,  369- 
373;  state,  system  of,  in  the 
United  States,  371;  classifica- 


INDEX 


445 


tion  according  to  relative  rank, 
372;  of  equity,  versus  courts  of 
law,  376. 

Covenant  entered  into  by  Pil- 
grims in  1620,  9. 

Cuba,  referred  to  as  a  state  with 
impaired  sovereignty,  19;  a  sov- 
ereign state,  20. 

Czecho-Slovaks,  desire  of,  for  au- 
tonomous state,  10,  27. 

Darwin,  influence  of  his  theory  of 
evolution  on  politics,  116. 

Declaration  of  Independence,  in- 
fluence of.  on  revolution,  102. 

Delaware,  ratification  of  constitu- 
tional amendments  in,  136. 

Democracy,  definition  of,  80-81 ; 
limitations  of,  81-^3;  dangers 
of,  82;  in  the  United  States, 
contest  of,  with  representative 
government,  89-90;  fear  of,  in 
early  constitutions,  117;  politi- 
cal parties  in,  434. 

Democratic-Representative  Gov- 
ernment, 86. 

Dependencies  and  Colonies, 
growth  of  self-government  in, 
68. 

Dicey,  Law  and  Public  Opinion  in 
England  in  the  Nineteenth  Cen- 
tury, cited,  i8n,  .I76n,  370  n. 

Divine  Right  of  Kings,  doctrine 
of,  41-42,  questioned,  48. 

Dorr's  Rebellion,  280-284. 

Duma,  significance  of  the  sum- 
moning of,  43. 

Economy  and  Efficiency  in  the 
Government  Service,  message 
of  President  Taft,  311  n. 

Elections,  of  President  and  Vice 
President  of  the  United  States, 
145;  majority  versus  plurality 
requirement  in,  329-331. 

Electorate,  surrender  of  constitu- 
ent powers  by,  121;  in  England, 


approval  necessary  to  change 
political  system,  124,  unable  to 
initiate  proposals  for  constitu- 
tional changes,  125,  composition 
of  in  beginning  of  nineteenth 
century,  279 ;  ratification  of  con- 
stitution by,  133;  powers  of, 
149;  a  distinct  branch  of  gov- 
ernment, 229-231 ;  role  of,  in 
monarchies,  229;  functions  of 
in  popular  government,  230;  de- 
fined, 273;  composition  of,  273, 
a  matter  of  expediency,  276, 
tendency  in  the  United  States, 
280;  the  possessor  of  legal  sov- 
ereignty, 277;  right  of  people  to 
revolt  against,  278;  procedure 
to  be  adopted  by,  284-288. 

Ely,  French  and  German  Social- 
ism, 171  n. 

England,  a  sovereign  state,  19; 
belief  in  divine  right  of  kings, 
42;  government  of,  after  Revo- 
lution of  1688,  oligarchic  type, 
47,  purest  example  of  represent- 
ative government,  86-87,  evolu- 
tion of,  99,  influence  of  legis- 
lative organization  and  proced- 
ure on,  335;  establishment  of 
popular  sovereignty  in,  49,  51 ; 
selection  of  king,  49;  constitu- 
tion of,  unwritten,  94;  location 
of  sovereignty  in,  123;  consti- 
tutional conventions  in,  124; 
constitutional  system  of,  in- 
formal modification  of,  144; 
major  political  divisions  of,  222 ; 
personal  union  of  powers  in, 
237;  independence  of  judiciary 
in,  239;  common  law  of,  265, 
364;  broadening  of  electoral 
franchise  in,  275;  franchise  acts 
of  1867,  1884,  and  1885  and  re- 
form act  of  1832,  275;  electoral 
conditions  in  beginning  of  nine- 
teenth century,  279;  reform  act 
of  1832  forced  by  threat  of 


446 


INDEX 


revolution,  279;  militant  suf- 
fragists of,  280;  decision  of 
contested  elections  in,  287 ;  char- 
acter of  the  legislature  in,  289; 
drafting  of  legislation  in,  295: 
ordinance  making  power  in,  307 ; 
impeachment  in,  312;  operation 
of  bicameral  legislative  system 
in,  319;  dissolution  of  legisla- 
ture in,  331 ;  executive  powers 
in,  339;  responsible  government 
in.  3545  successful  operation  of, 
358,  359;  system  of  courts  in, 
37O,  371 ;  reform  of  judicial  sys- 
tem of,  371 ;  administration  of 
justice  in,  375;  judiciary  in,  un- 
til the  Revolution  of  1688,  382; 
Treasury  Department  of,  a 
service  of  general  overhead  ad- 
ministration, 394 ;  personnel  sys- 
tem of,  described,  401-402;  po- 
litical parties  in,  414-419,  424; 
Parliament,  see  Parliament  of 
England. 

England:  Its  Political  Organisa- 
tion and  Development  and  the 
War  Against  Germany,  by  Ed- 
ward Meyer,  cited,  31  n. 

Equality  before  the  Law,  160-161. 

European  Police  Systems,  by  Ray- 
mond B.  Fosdick,  cited,  61. 

Executive  branch,  functions  of, 
385. 

Federal  government,  problem  of 
constitutional  revision  in,  137. 

Federalist,  The,  cited,  88. 

Federation,  a  result  of  American 
Civil  War,  24. 

Federation  and  confederation,  dis- 
tinction between,  22-23. 

Fields,  Factories  and  Workshops, 
by  Kropotkine,  171  n. 

Filipino  Republic,  its  right  to  be 
designated  a  state,  18. 

Finns,  desire  of,  for  independence,, 
10. 


Fosdick,  Raymond,  European  Po- 
lice Systems,  cited,  61. 

France,  popular  sovereignty  not 
directly  declared  in  constitution, 
51 ;  after  Revolution  of  1789,  a 
popular  government  without 
laws,  77;  first  republic  estab- 
lished by  revolution,  100;  form- 
ulation of  the  constitution  of, 
104;  constituent  assembly  of 
1871,  104;  Constitutional  Law 
on  Organization  of  Public  Pow- 
ers, Sec.  8,  cited,  143;  major  po- 
litical divisions  of,  222 ;  election 
of  chief  executive  in,  343,  344; 
responsible  government  in,  355 ; 
system  of  courts  in,  369;  sys- 
tem of  political  parties  in,  428; 
constitution  of,  see  Constitution 
of  France. 

Freedom  of  speech  rght  of,  161. 

French  and  German  Socialism,  by 
Ely,  171  n. 

French  Revolution,  fighting  inci- 
dent to,  102. 

Fundamental  Laws  of  the  Russian 
Empire,  cited,  40. 


Germany,  belief  in  divine  right  of 
kings,  42;  foreign  policy  of,  as 
illustrating  advantage  of  autoc- 
racy, 56 ;  cause  of  administrative 
efficiency  in,  57;  location  of  ad- 
ministrative authority,  58;  mold- 
ing of  public  opinion  through 
bureaucracy  in,  62;  social-demo- 
cratic party  in,  65,  433;  conver- 
sion from  autocracy  to  popular 
government,  70;  constitution  of, 
Art.  78,  cited,  141 ;  constitutional 
amendment  in,  141;  a  union  of 
formerly  independent  states, 
202;  increase  of  strength  of  na- 
tional government  in,  205;  ter- 
ritorial distribution  of  powers 
in,  210;  judicial  system  of,  218, 


INDEX 


447 


369;  use  ol  state  administrative 
systems  by  central  government 
in,  218;  major  political  divisions 
of,  222;  dissolution  of  legisla- 
ture in,  331 ;  attempt  to  establish 
responsible  government  in,  356; 
political  parties  in,  430-4345 
governmental  system  of,  430. 

Goodnow,  Frank  J.,  Social  Re- 
form and  the  Constitution,  cit- 
ed, 207;  Comparative  Adminis- 
trative Law,  370  n. 

Government,  definition  of,  6;  uni- 
tary, n ;  its  distinction  from 
state,  n,  15;  multiple  or  federal, 
ii ;  an  agent  of  the  state,  15; 
unity  of,  35,  36,  181 ;  types  of, 
according  to  location  of  sover- 
eignty, autocracy,  oligarchy,  and 
popular,  37;  distinction  between 
autocratic  and  popular,  45;  oli- 
garchic type  of,  46 ;  popular  type 
of,  47 ;  comparison  of  autocratic 
and  popular,  52-68;  moral  as- 
pects of,  59;  types  of,  according 
to  exercise  of  sovereignty,  72- 
79;  establishment  of,  through 
formulation  of  constitutions,  93 ; 
powers  of,  149,  functional  dis- 
tribution of,  227-267,  classifica- 
tion of,  228,  distribution  of  ter- 
ritorially, by  whom  made,  189- 
190,  distribution  of,  two-fold 
method,  183,  territorial,  183- 
226;  jurisdiction  of,  determina- 
tion of,  two-fold  character  of 
problem,  151 ;  functions  of,  169- 
177;  unitary  versus  multiple, 
190-193;  electoral  branch  of, 
271-288;  executive  branch  of, 
338-359;  judicial  branch  of,  360- 
384;  administrative  branch  of, 
385-407.  Popular,  see  Popular 
government. 

Government  of  Union  of  Powers, 
character  of  the  legislature  in, 


Government  of  Authority  versus 
Government  of  Law,  72. 

Government  of  England,  by  A. 
Lawrence  Lowell,  cited,  409,  437. 

Governor  of  a  state,  as  adminis- 
trator-in-chief,  394. 

Grand  Jury,  composition  and  pro- 
cedure of,  374. 

Great  Britain,  see  England. 

Greece,  ancient,  democracy  in,  82. 

Greek  Republic,  the  origin  of  pop- 
ular sovereignty,  47. 


Hobbes,  Thomas,  49. 

House  of  Representatives,  Com- 
mittee on  Rules,  336. 

Humphrey,  Proportional  Repre- 
sentation, 328  n. 


Income  tax,  amendment  to  United 
States  constitution  authorizing, 
292. 

Individual  rights,  guarantee  of, 
not  essential  to  constitutional 
government,  78;  methods  of 
providing,  151-156,  advantages 
of  statement  of,  in  constitutions, 
156;  nature  of,  157. 

Individual  rights  and  natural  law, 
166-168. 

Individual  rights  versus  social 
rights,  164-166. 

Individualistic  school  of  political 
thought,  172-175. 

"  Initiative,"  in  the  United  States, 
90. 

Ito,  Baron,  of  Japan,  Commenta- 
ries on  the  Constitution  of  the 
Empire  of  Japan,  cited,  40. 

Jackson,  election  of,  in  1824,  89; 

exercise  of  removal  power  by, 

257. 
Japan,   constitution   of,   cited,  39, 

40,    141 ;   government   of,   auto- 


448 


INDEX 


cratic  type,  39;  foreign  policy 
of,  as  illustrating  advantage  of 
autocracy,  56;  responsible  min- 
istry in,  71 ;  revolution  in,  sig- 
nificance of,  75;  constitution  of, 
granted  by  ruler,  97;  constitu- 
tional amendment  in,  141 ;  at- 
tempt to  establish  responsible 
government  in,  356. 

Jenks,  Edward,  Law  and  Politics 
in  the  Middle  Ages,  cited,  306. 

Johnson,  President,  attempted  im- 
peachment of,  256,  348. 

Jones,  C.  L.,  Statute  Law  Making, 
cited,  323. 

Judicial  branch,  relation  of  chief 
executive  to,  351 ;  functions  of, 

360- 

Judicial  procedure,  373-378;  in 
criminal  cases,  accusatorial  ver- 
sus inquisitorial  systems,  374. 

Judiciary,  of  the  United  States, 
legislative  functions  of,  246; 
sole  possessor  of  judicial  power, 
249;  independence  of,  250,  378- 
384;  peculiar  status  of,  380; 
method  of  selecting  federal  and 
state  judges,  383;  superiority  of 
federal  over  state,  384. 

Judiciary  and  Progress,  by  Wil- 
liam H.  Taft,  cited,  381. 

Jugo-Slavs,  desire  of,  for  autono- 
mous state,  10,  27;  deliberate 
organization  of  government  by, 
98. 

Jury,  petty,  institution  of,  362; 
composition  of,  and  rules  gov- 
erning, 376. 

Kendall  versus  United  States,  253. 

Kropotkine,  Prince,  a  scientific  an- 
archist, 171 ;  Fields,  Factories 
and  Workshops,  171  n. 

Law,  defined,  6,  302;  an  attribute 
of  the  state,  12-14;  private, 
largely  found  in  decisions  of 


courts,  365;  conflict  of,  in  the 
United  States,  366;  determina- 
tion of  constitutionality  of,  367; 
versus  equity,  375. 

Laiv  and  Politics  in  the  Middle 
Ages,  by  Edward  Jenks,  cited, 
306. 

Law  and  Public  Opinion  in  Eng- 
land in  the  Nineteenth  Century, 
by  Dicey,  cited,  18  n,  176  n,  370  n. 

Leacock,  Stephen,  The  Limitations 
of  Federal  Government,  cited, 
212  n. 

Legislatures,  state,  ratification  of 
constitutional  amendments  by, 
140;  character  of,  in  a  unitary 
government,  289,  in  a  govern- 
ment of  union  of  powers,  289; 
in  England,  289;  in  a  represent- 
ative government,  290;  problem 
of  organizing  and  operating, 
200 ;  functions  of,  291 ;  unicam- 
eral  versus  bicameral,  313,  317- 
321 ;  bicameral,  historical  devel- 
opment, 314,  in  United  States, 
318,  in  England,  319,  in  Canada, 
320,  in  a  multiple  government, 
321;  selection  of  members,  of 
the  upper  house,  319,  method  of, 
324-327,  district  versus  general 
ticket  system,  326;  length  of 
term  of  members  of,  322-324; 
size  of,  322;  composition  of, 
321 ;  qualifications  of  members 
of,  324;  minority  or  propor- 
tional representation  in,  327-329 ; 
duration  of,  331-333,  in  Eng- 
land and  Germany,  331 ;  sessions 
°f ,  332 ;  powers  and  privileges 
of,  333-335;  procedure  of,  335- 
337;  in  German  states,  430-431. 

Legislative  Notes  and  Reviews, 
American  Political  Science  Re- 
view, November,  1915,  cited, 
i88n. 

Legislative  Powers,  distinguished 
from  constituent  powers,  119. 


INDEX 


449 


Limitations  of  Federal  Govern- 
ment, The,  by  Stephen  Leacock, 
cited,  212  n. 

Lowell,  A.  Lawrence,  Government 
of  England,  cited,  409,  437. 

Madison,  James,  on  distinction  be- 
tween representative  govern- 
ment and  democracy,  87. 

Magistracy,  definition  of,  6. 

Magna  Charta,  not  superior  to  or- 
dinary law,  78. 

Maitland,  F.  W.,  Constitutional 
History  of  England,  cited,  307  n, 
308. 

Manchester  School,  philosophy  of, 

I7f 
Materiel,  problems  of,  404-406. 

Maximillian,  Prince,  address  to 
Reichstag,  69,  356  n. 

Mexico,  establishment  of  multiple 
government  in,  203. 

Meyer,  Edward,  on  conception  of 
the  state,  31. 

Ministry,  in  Great  Britain,  three 
capacities  of,  240 ;  its  relation  to 
Parliament,  240 ;  legislative 
powers  of,  295. 

Militarism,  defined,  62. 

Minority  representation,  328. 

Monarchy,  popular  government 
possible  in,  51. 

Montesquieu,  on  the  constitutional 
separation  of  powers,  264. 

Multiple  government,  in  the  Unit- 
ed States,  Germany  and  Swit- 
zerland, 191,  202;  versus  unitary 
government,  192-200 ;  due  al- 
most wholly  to  historical  rea- 
sons, 201-202;  establishment  of, 
in  Central  and  South  America, 
202-203;  increase  of  strength  of 
central  government  in,  204-206; 
an  intermediary  stage,  206 ;  dis- 
tribution of  powers  in,  208-212, 
territorially,  197 ;  interrelations 
of  governments  within,  212-213 ; 


disadvantages  of,  212;  adminis- 
trative systems  possible  in,  217; 
bicameral  legislative  system  in, 
321. 
Multi-party  system,  329. 

National  Assembly,  creation  of, 
297,  in  China,  297,  299,  in  a  pop- 
ular government,  298;  reason 
for  general  failure  of,  297; 
functions  of,  301;  as  a  creator 
of  law,  305. 

Natural  law  and  individual  rights, 
166-168. 

Neutralized  states,  19-22. 

New  England,  towns  of,  democ- 
racy in,  82;  evolution  from  de- 
mocracy to  representative  gov- 
ernment in,  100. 

Non-sovereign  states,  19-22. 

Oligarchic  type  of  government,  46. 
Oxford      University,     graduation 

from,    a    requirement    for   first 

division  clerkships,  401. 

Parliament,  English,  as  elector  of 
the  king,  49 ;  powers  of,  respect- 
ing the  throne,  49;  supremacy 
of,  78;  exercises  entire  sover- 
eign power  of  people,  87,  123; 
inability  of,  to  change  political 
system  unless  approved  by  elec- 
torate, 124;  attitude  of,  towards 
the  budget,  238 ;  possessor  of  all 
legislative  powers,  238;  its  atti- 
tude towards  matters  of  admin- 
istration, 239;  respecting  the  re- 
moval of  judges,  239;  relation 
of  the  ministry  to,  240;  as  an 
organ  of  public  opinion,  294; 
no  longer  a  legislative  body, 
295;  as  a  board  of  directors, 
303 ;  development  of,  into  a  leg- 
islative organ,  306-308 ;  first  suc- 
cessful legislature,  314;  develop- 


450 


INDEX 


ment  of  bicameral  system  in, 
315;  struggle  for  privileges  im- 
munities, 333. 

Party  organizations,  in  the  United 
States,  89. 

People,  definition  of,  6. 

Persia,  referred  to  as  a  state  with 
impaired  sovereignty,  19;  revolt 
in,  significance  of,  75,  part  of 
widespread  political  movement, 
106. 

Personnel,  problems  of,  396;  bu- 
reaucratic system  of  in  Prussia, 
397-400;  English  system  of  de- 
scribed, 401-402;  system  in  the 
United  States,  402-403. 

Petition,  right  of,  161. 

Petition  of  Rights,  not  superior  to 
ordinary  law,  78. 

Philosophy  of  Labor  Legislation, 
by  W.  F.  Willoughby,  cited,  18  n. 

Pilgrim  Republic,  The,  by  Good- 
win, cited,  10  n. 

Pilgrims,  on  Mayflower,  constitut- 
ing body  politic,  9. 

Poles,  desire  of,  for  autonomous 
state,  10,  27;  deliberate  organi- 
zation of  government  by,  98. 

Political  divisions,  kinds  of,  188. 

Political  parties,  as  organs  of  pub- 
lic opinion,  294;  a  recent  phe- 
nomena, 408;  viewed  as  an  evil, 
408-410;  role  of,  in  modern  gov- 
ernments, 408-438;  inside  and 
outside  the  government,  distinc- 
tion between,  411-413;  in  Eng- 
land, 414-419,  424 ;  in  the  United 
States,  146,  419-423,  424;  two 
party  system,  425-426;  collective 
versus  individual  responsibility, 
426-428;  collective  responsibility 
of,  in  England,  427,  in  the  Unit- 
ed States,  427;  system  of,  in 
France  and  other  Latin  coun- 
tries of  Europe,  428-430 ;  in  Ger- 
many, 430-434;  in  Switzerland, 
434-436. 


Political  principles,  difference  of, 
in  governments,  4,  5. 

Political  Rights,  161-162;  nature 
of,  161 ;  limitations  on  the  exer- 
cise of,  162;  fundamental  pur- 
pose of,  162. 

Political  Science  and  Constitu- 
tional Law,  by  Burgess,  cited, 
15  n. 

Politics,  influence  of  theory  of 
evolution  upon,  117. 

Pope,  supreme  authority  of,  42,  48. 

Popular  government,  47;  possible 
in  a  monarchy,  51 ;  a  question  of 
fact,  51 ;  source  of  administra- 
tive authority  in,  57;  superior- 
ity of  to  autocracy,  67;  steps  to 
be  taken  by,  to  secure  adminis- 
trative efficiency,  67;  more  dif- 
ficult to  organize  and  operate 
than  an  autocracy,  68;  struggle 
in  Germany  and  Japan  for,  69- 
71 ;  absolute  versus  limited,  75- 
77;  need  of  law  in,  76;  demo- 
cratic versus  representative 
types,  80-90;  electorate  in,  273; 
steps  in  the  establishment  of, 
298;  political  parties  in,  423. 

Popular  sovereignty,  doctrine  of, 
historical  development  of,  47- 
51,  origin  of,  47,  basis  for 
French  Revolution,  50,  in  Amer- 
ican colonies,  50;  establishment 
in  England  of,  49;  not  ex- 
pressly declared  in  constitution 
in  England,  the  United  States 
and  France,  51 ;  declared  in  con- 
stitution of  China  and  Belgium, 
51 ;  tendency  to  prevail,  68,  69. 

Porto  Rico,  location  of  adminis- 
trative powers  in,  58;  similarity 
to  German  government,  59. 

Post  Office  Department,  accounta- 
ble to  Congress,  252. 

President  of  the  United  States, 
powers  of,  veto,  243 ;  legislative, 
246,  251,  296,  executive,  248,  ad- 


INDEX 


45i 


ministrative,  254,  394;  nominat- 
ing, appointing  and  removal, 
255;  direction  and  control,  388. 

Presidential  government,  estab- 
lishment of,  in  China,  358. 

Principles  of  Government  Pur- 
chasing, by  A.  G.  Thomas,  406  n. 

Privy  Council,  of  England,  309. 

Problem  of  a  National  Budget,  by 
W.  F.  Willoughby,  389  n. 

Problems  of  Readjustment  after 
the  War,  by  W.  W.  Willoughby, 
cited,  45. 

Procedural  rights,  162-164;  de- 
fined, 163;  constitutional  guar- 
antee of,  in  the  United  States, 
163. 

Prohibition,  amendment  to  United 
States  constitution,  293. 

Property  rights,  158-160;  in  con- 
stitution of  the  United  States, 

159- 

Proportional  representation,  328. 

Proportional  Representation,  by 
Humphrey,  328  n ;  by  J.  R.  Com- 
mons, 328  n. 

Provisional  government,  problems 
of,  103-105. 

Prussia,  government  of,  autocratic 
type,  40;  constitution  of,  40, 
granted  by  ruler,  97;  personnel 
system  of,  397-400. 

Prussian  Theory  of  Government, 
The,  by  W.  W.  Willoughby,  cit- 
ed, 28  n. 

Prussian  Theory  of  the  State, 
The,  by  W.  W.  Willoughby,  cit- 
ed, 28  n,  30  n. 

Public  officials,  definition  of,  6. 

Puritan  movement,  overthrew  pa- 
pal supremacy  in  England,  48. 

Puritans,  and  the  Stuarts,  49. 

Quasi-sovereign  states,  19-22. 

"  Recall,"  in  the  United  States,  90. 
Recall  of  Judges,  address  on,  be- 
fore  the   Minnesota    State   Bar 


Association,  by  Rome  G.  Brown, 
cited,  380. 

"  Referendum,"  in  the  United 
States,  90. 

Reform  Act  of  1832,  enactment  of, 
280. 

Reformation,  overthrew  papal  su- 
premacy on  the  continent,  48. 

Reichstag,  address  to,  by  Prince 
Maxmillian,  69;  as  an  organ  of 
public  opinion,  296. 

Reinsch,  Paul,  American  State 
Legislatures,  cited,  136. 

Representation,  representative  ver- 
sus agency  type  of,  413-414;  in 
England,  the  representative 
type,  417,  418;  in  the  United 
States,  the  agency  type,  420. 

Representative  government,  83-86  ; 
defined,  83;  a  device  for  apply- 
ing principles  of  popular  gov- 
ernment, 84 ;  England  the  purest 
example  of,  86;  contest  of,  with 
democracy  in  the  United  States, 
89-90;  ratification  of  constitu- 
tional amendments  in,  136; 
character  of  the  legislature  in, 
290. 

Responsible  government,  defined, 
352;  examples  of,  in  France, 
England  and  Italy,  352;  forma-* 
tion  and  duration  of  the  minis- 
try in,  353. 

Responsible  government  versus 
presidential  government,  356. 

Revolution  of  1688,  contest  over 
location  of  sovereignty,  38. 

Revolution  of  1911,  in  China,  sig- 
nificance of,  75. 

Revolutions,  dual  character  of, 
101-102;  difficulties  of  establish- 
ment of  government  by,  102- 
106;  of  Turkey,  of  Persia,  of 
Russia,  of  China,  of  America, 
illustrative  of  difficulty  of  estab- 
lishing constitutions  by  revolu- 
tion, 103 ;  right  of,  284. 


452 


INDEX 


Rhode  Island,  Dorr's  Rebellion  in, 
280-284. 

Roman  Republic,  the  origin  of 
popular  sovereignty,  47. 

Rome,  empire  of,  nominally  re- 
publican, 48. 

Rousseau,  Jean  Jacques,  writings 
of,  on  popular  sovereignty,  50; 
The  Social  Contract,  50;  influ- 
ence upon  French  Revolution, 
101. 

Russia,  desire  of  the  peoples  of, 
for  independence,  10;  govern- 
ment of,  autocratic  type,  40; 
Fundamental  Laws  of  the  Rus- 
sian Empire,  cited,  40;  Czar  of, 
43;  revolution  of  1917,  68;  at 
present,  a  popular  government 
without  law,  77,  only  nominally 
a  constitutional  government,  79; 
soviet  government  of,  estab- 
lished by  revolution,  101 ;  revolt 
in,  part  of  widespread  political 
movement,  106. 

Schools  of  Political  Thought,  fun- 
damental distinction  between, 
170. 

Senate  of  the  United  States,  pow- 
er of,  treaty-making,  249,  310, 

•  appointing,  310;  as  an  executive 
council,  309;  committee  on  for- 
eign affairs  of,  conference  with 
President  on  treaties,  311. 

Senators,  popular  election  of, 
amendment  to  United  States 
constitution,  293. 

Short  ballot,  movement  for,  in 
United  States,  90. 

Social  Contract,  The,  by  Jean 
Jacques  Rousseau,  50. 

Social-Democratic  Party,  in  Ger- 
many, 433. 

Social  Reform  and  the  Constitu- 
tion, by  Frank  J.  Goodnow,  cit- 
ed, 207. 

Socialistic     school     of     political 


thought,  attitude  of,  towards 
functions  of  government,  176. 

Society,  definition  of,  5-6. 

South  Africa,  establishment  of 
unitary  government  in,  203. 

Sovereignty,  as  an  attribute  of  the 
State,  14,  15,  20;  defined,  20, 
149;  lack  of  power  not  an  im- 
pairment of,  20;  unity  and  indi- 
visibility of,  21 ;  location  of,  in 
a  federation  and  confederation, 
22,  importance  of  determining, 
36,  38,  three  principles  respect- 
ing, 37,  in  governments  of  au- 
thority, 73,  in  a  democracy,  81, 
in  England,  123;  in  oligarchic 
government,  46 ;  in  popular  gov- 
ernment, 47;  in  representative 
government,  85 ;  legal  versus  po- 
litical, 277 ;  popular,  see  Popular 
sovereignty. 

Spain,  major  political  divisions  of, 
222. 

Spencer,  Herbert,  writings  of,  on 
individualism,  173. 

Spirit  of  the  Laws,  The,  by  Mon- 
tesquieu, 264. 

Spoils  system,  in  the  United 
States,  attempts  to  abolish,  421. 

State,  distinction  between  state 
and  government,  5,  15,  necessity 
for,  ii ;  definition  of,  6,  26;  na- 
ture of,  7-32,  importance  of 
question  of,  27,  28;  essential 
characteristics  of,  7;  as  an  ab- 
straction, 7;  steps  toward  crea- 
tion of,  at  present  time,  10;  as 
an  entity,  n,  12;  attributes  of, 
law,  12-14,  force  or  compulsion, 
12,  sovereignty,  14,  15 ;  possessor 
of  supreme  authority,  14,  15; 
unlimited  powers  of,  15,  16;  sig- 
nificance of  creation  of,  15,  16; 
relation  of,  to  individual  liberty, 
18;  contest  over  the  nature  of, 
cause  of  Civil  War,  24;  as  pos- 
sessor of  personality,  24,  25; 


INDEX 


453 


identical  character  of,  in  all 
cases,  25-26 ;  theory  of,  organic, 
25,  Anglo-Saxon,  28,  compari- 
son of  Anglo-Saxon  and  Teu- 
tonic, 28-32,  German,  29. 

State  and  government,  distinction 
between,  5-6. 

State  Department,  control  of,  by 
the  President,  252. 

State  government,  relation  to  cen- 
tral government,  214-221. 

State  legislatures,  in  Germany, 
430-431. 

States,  non-sovereign,  quasi-sov- 
ereign, with  impaired  sovereign- 
ty, neutralized,  19-22;  of  the 
United  States,  agreements  be- 
tween, must  be  approved  by 
Congress,  221,  interrelations  of, 
221. 

Statute  Law  Making,  by  C.  L. 
Jones,  cited,  324. 

Stuarts  and  the  Puritans,  49. 

Stuart  Kings  of  England,  theory 
of  divine  right  of,  38. 

Studies  in  History  and  Jurispru- 
dence, by  James  Bryce,  cited,  42. 

Supreme  Court,  of  the  United 
States,  power  to  pass  on  acts  of 
Congress,  120;  decision  of,  in 
Kendall  versus  United  States, 
254;  respecting  two  govern- 
ments in  Rhode  Island,  283. 

Switzerland,  cantons  of,  democ- 
racy in,  82,  evolution  from  de- 
mocracy to  representative  gov- 
ernment in,  100;  initiation  of 
constitutional  amendments  in, 
135;  constitutional  revision  or 
amendment  in,  137 ;  a  union  of 
formerly  independent  states, 
202;  increase  of  strength  of  na- 
tional government  of,  205;  ter- 
ritorial distribution  of  powers 
in,  210;  executive  powers  in, 
339;  political  parties  in,  434-436. 

System  of  Financial  Administra- 


tion of  Great  Britain,  by  W.  F. 
Willoughby,  W.  W.  Willoughby, 
and  S.  M.  Lindsay,  293  n. 

Taft,  William  H.,  Economy  and 
Efficiency  in  the  Government 
Service,  311  n;  Judiciary  and 
Progress,  cited,  381. 

Tenure  of  Office  Acts  of  1867  and 
1869,  256. 

Thomas,  A.  G.,  Principles  of  Gov- 
ernment Purchasing,  406  n. 

Treasury  Department,  of  the 
United  States,  directly  account- 
able to  Congress,  252;  of  Eng- 
land, a  service  of  general  over- 
head administration,  394. 

Turkey,  revolution  in,  significance 
of,  75;  revolt  in,  part  of  wide- 
spread political  movement,  106. 

Ukrainians,  desire  of,  for  inde- 
pendence, 10. 

Union  versus  Separation  of  Pow- 
ers, constitutional,  233-235,  rea- 
sons for  preferring  separation, 
264;  distinction  between  person- 
al and  organic,  236;  comparison 
of  United  States  and  Great 
Britain  in  respect  to,  237,  262; 
relative  merits,  261-268. 

Unitary  government,  examples  of, 
191 ;  distribution  of  powers  ter- 
ritorially in,  192 ;  local  self-gov- 
ernment possible  under,  200; 
adopted  by  South  Africa  and 
China,  203-204;  movement  to- 
wards, 207;  advantages  of,  212; 
character  of  legislature  in,  289. 

Unitary  versus  Multiple  govern- 
ment, 192-200;  problem  of  local 
self-government  under,  200-201. 

United  States,  a  unitary  state  not- 
withstanding its  federal  form 
of  government,  n ;  a  sovereign 
state,  19;  popular  sovereignty 
not  directly  declared  in  consti- 


454 


INDEX 


tution,  51 ;  administrative  ineffi- 
ciency in,  57;  government  of, 
representative  in  principle,  87- 
88,  established  by  revolution, 
101,  influence  of  legislative  or- 
ganization and  procedure  on, 
336;  ratification  of  constitutions 
by  electorate  desirable  in,  133; 
initiation  of  constitutional 
amendments  in,  135;  a  union  of 
formerly  independent  states, 
202;  movement  to  counteract 
disadvantages  of  multiple  gov- 
ernment in,  205;  territorial  dis- 
tribution of  powers  in,  210;  in- 
ter-governmental relations  in, 
213;  duplicate  judicial  system  in, 
219;  duplication  of  administra- 
tive agencies  by  central  and 
state  governments  in,  219;  ma- 
jor political  divisions  of,  222; 
political  subdivision  of,  at  pres- 
ent defective,  223,  proper  meth- 
od, 224;  exercise  of  legislative 
power  by  judiciary  in,  247;  dis- 
tribution of  administrative  pow- 
ers in,  259;  a  government  of 
union  of  powers  organically  and 
personally,  260;  question  of 
electoral  franchise  in,  275; 
growth  of  electorate  in,  280;  de- 
cision of  contested  elections  in, 
287;  growth  of  legislative  pow- 
er of  President  in,  296;  im- 
peachment in,  312;  bicameral 
legislatures,  316,  318;  executive 
powers  in,  340;  chief  executive, 
election  of,  145,  344,  345,  succes- 
sion to  office  of,  347,  independ- 
ence of,  349;  administrative  tri- 
bunals in,  370;  system  of  courts 
in,  370,  371 ;  method  of  selecting 
federal  and  state  judges  in,  383; 
need  for  reorganization  of  ad- 
ministrative services  in,  393; 
personnel  system  of,  402-403; 
agency  type  of  representation 


in,  420;  political  parties  in,  424. 
Congress  of,  see  Congress  of 
the  United  States.  Supreme 
Court  of,  see  Supreme  Court  of 
the  United  States. 

Venice,  government  of,  oligarchic 

type,  46. 
Voltaire,  influence  of,  on  French 

Revolution,  101. 

Wallace,  influence  of  his  theory 
of  evolution  on  politics,  116. 

War,  present,  one  of  political  prin- 
ciples, 4,  5,  different  conceptions 
of  state  cause  of,  27;  Franco- 
Prussian,  of  1870-71,  104. 

War  Department,  control  of,  by 
President,  252. 

Webster,  Daniel,  speeches  on  na- 
ture of  union,  24;  on  political 
versus  legal  sovereignty  in 
American  law,  283. 

William  of  Orange,  38;  election 
of,  09. 

Willoughby,  W.  F.,  The  Philoso- 
phy of  Labor  Legislation,  cited, 
i8n;  Correlation  of  the  Organ- 
isation of  Congress  with  that  of 
the  Executive,  305  n;  Problem 
of  a  National  Budget,  389  n. 

Willoughby,  W.  W.,  on  definitions 
of  terms  employed  in  political 
science,  5,  6;  The  American 
Constitutional  System,  cited,  13, 
14,  21,  23 ;  The  Prussian  Theory 
of  the  State,  cited,  28 n;  The 
Prussian  Theory  of  Govern- 
ment, cited,  28  n ;  on  the  concep- 
tion of  the  state,  30;  Problems 
of  Readjustment  after  the  War, 
cited,  45. 

Willoughby-  Willoughby-  Lindsay, 
System  of  Financial  Adminis- 
tration of  Great  Britain,  239  n. 

Wilson,  Woodrow,  Constitutional 
Government  in  the  United 


INDEX 


455 


States,  cited,  77,  295,  303 ;  on  the 
English  Parliament,  294. 
Woman  Suffrage,  276. 


Yuan  Shi  Kai,  his  attempt  to  con- 
vert China  into  a  constitutional 
monarchy,  342. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 

RECEIVED 


4J> 


ter 


* 


REC'D  LD 


MAR  2    '65  -11  AM 


LOAN  DEPT. 


"CIS       MAY  2  S  76 


*H 


EEC.CIR. 


LD  21A-50m-4,'59 
(A1724slO)476B 


General  Library 

University  of  California 

Berkeley 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


